IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 W.A.No. 626 of 2007() -------------------- AGAINST THE JUDGEMENT IN WPC.29770/2006 Dated 06/12/2006 . ................... APPELLANT(S): 2ND & 3RD RES. IN WPC 29770/06 --------------------------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH & FAMILY WELFARE, DEPARTMENT OF AYUSH, NEW DELHI. 2. CENTRAL COUNCIL OF HOMOEOPATHY, NO.61065, INSTITUTIONAL AREA, JANAK PURI, NEW DELHI-110 058. BY ADV. SRI.AJITH KRISHNAN (CGSC) RESPONDENT(S): PETITIONERS 1-20 & RES. NOS.1,4 & 5 IN WPC29770/06 ----------------------------------------------------------------- 1. DR. MANJU.G.S., T.C.24/422, SANGEETH NAGAR-225, THYCAUD, THIRUVANANTHAPURAM-14. 2. DR. R.ASHA, SRI. DURG PRASANNA, GOKUL NAGAR KURIA, MANGALORE D.K., PIN-575 019. 3. DR. MRIDULA GOPINATHAN, 'AKSHAYA', K-133, KOCHAR ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM-10. 4. DR. N.PADMASUGANYA, 'GUNAVANI ILLAM', SIVARAJ STREET, POTTINAIDU STREET, EXTENSION, VANDAVANI, THIRUVANNAMALI DISTRICT, TAMIL NADU-604 408. 5. DR. N.K.JAYANTHI, 62, P.R.SRINIVASA RAO, ST.DHARMAPURI-636 701, TAMIL NADU. 6. DR. ASHAMOL K.N., KONNACKAMALAPARAYIL HOUSE, KOLANI P.O., THODUPUZHA, IDUKKI DISTRICT. W.A.No. 626 of 2007 2 7. DR. SINDHU VENUGOPAL, PUTHIYA VALAPPIL HOUSE, HOSDURG BEACH, KANHANGAD, KASARAGOD DISTRICT. 8. DR. THRUSALA R.I., T.C.20/173(1), AMARAVATHI, MELARANNOOR, KARAMANA P.O., THIRUVANANTHAPURAM-2. 9. DR. NISHA A.N., ENA COTTAGE, TRA-52, THACHOTTUKAVU, MALAYINKIL P.O., THIRUVANANTHAPURAM. 10. DR. ANJU A. JOHN, THOPPUVILLA MELEPUTHEN VEEDU, PALLICHAL P.O., VEDIVECHANCOIL, THIRUVANANTHAPURAM. 11. DR. SREEREKHA S., KAVMATTU VEEDU, KURUMANDAL, PARAVOOR, KOLLAM. 12. DR. SALEENA A., 'FARHAM', POOVARASUVILA, VELLAR, KOVALAM P.O., THIRUVANANTHAPURAM. 13. DR. LAKSHMI PRIYA T., ROHINI, T.C.22/1785, MELATHUMALA, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM. 14. DR. LIMA H.L., T.C.2/44, MELAYIL THEGHETHIL HOUSE, OPP. TO JUNIOR TELECOM OFFICE, KESAVADASAPURAM, THIRUVANANTHAPURAM-4. 15. DR. LALI I.S., KALLUVETTANKUZHI VEEDU, KIZHUVILLAM P.O., MAMAM, ATTINGAL, THIRUVANANTHAPURAM. 16. DR. SAJEEV V., KANNAMPILLIL HOUSE, SOORANAD P.O., KOLLAM-690 522. 17. DR. SHOPHY R. DAS, 'SARASS', AVALAKUNNU P.O., ALAPPUZHA-6. 18. DR. SMITHA K. MOHAN, KOLLETH HOUSE, ALMURYKARA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. 19. DR. PRADEEP KUMAR, KRISHNAVILASOM, SNEHA NURSERY LANE, AYANIKKADU, KARAKULAM P.O., THIRUVANANTHAPURAM. W.A.No. 626 of 2007 3 20. DR. ARIHARAN S., 56/D2,PULLALAKOTTAL ROAD, BHARATI NAGAR, 5TH STREET, VIRUDHUNAGAR DISTRICT, TAMIL NADU, 5TH STREET, VIRUDHUNAGAR DISTRICT, TAMIL NADU. 21. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 22. UNIVERSITY OF KERALA, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR. 23. THE PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM. ADV. SRI.NAVEEN.T. FOR R1 TO R20 SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R22 G.P.SMT.R.BINDU FOR R21 & R23 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No. 626 of 2007 ---------------------------------------- Dated 9th March, 2010 JUDGMENT Balakrishnan Nair, J. Respondents 2 and 3 in the Writ Petition are the appellants. They are respectively the Union of India and Central Council of Homoeopathy. The brief facts of the case are the following. The Syndicate of the Kerala University on 31.5.2003, as evident from Ext.P1, decided to grant sanction for starting Post Graduate Courses in Homoeopathy in the disciplines of “Practice of Medicine” and “Homoeopathic Pharmacy” in Government Homoeopathic Medical College, Thiruvananthapuram. It appears, a parallel decision was taken by the Calicut University also to permit starting of P.G. Courses in those subjects in the Government Homoeo Medical College at Kozhikode. The Government by Ext.P2 order dated 14.2.2005 sanctioned starting of Homoeopathic Post Graduate Courses in “Practice of Medicine” and “Homoeopathic Pharmacy” in the Homoeopathic Medical Colleges at Thiruvananthapuram and Kozhikode. The Government published Ext.P3 prospectus for admission to three Homoeopathic M.D. Courses (without the above two W.A.No.626/2007 2 courses), in the aforementioned two Medical Colleges, for the year 2004-2005. In view of Ext.P2, it was decided to start Post Graduate Courses in “Practice of Medicine” and “Homoeopathic Pharmacy” also in the said Colleges in the very same academic year 2004-2005. For the said purpose, the rank list prepared for admission, pursuant to the Entrance Examination, was extended up to 30.4.2005 and options were called for from the candidates. Some of the writ petitioners joined the aforementioned courses for which classes started on 2.5.2005, pursuant to the modification of Ext.P3, in the light of Ext.P2. For the next year, that is 2005-2006, Ext.P4 prospectus was published on 28.2.2005. The said prospectus contained the two newly sanctioned Post Graduate Courses in Homoeopathic Medicine mentioned above in the said colleges. Ext.P5 is the notification issued inviting applications for the Entrance Examination. The courses for the academic year 2005-2006 started on 11.1.2002. 2. In the meantime, the Homoeopathy Central Council Act was amended by Ext.P7 which was enforced with effect from 28.1.2003. The Central Government issued Ext.P6 communication to the Colleges alerting them about the necessity to get previous sanction from the Central Government for commencing PG Courses. After the enforcement of Ext.P7, it was for the Principal to apply to the Central Government for sanction by remitting a fee of Rs.2 lakhs per subject. W.A.No.626/2007 3 In this case, same person was the Principal of both the Colleges at the relevant time. He failed to apply in time. Thereafter, he moved for ex post facto sanction before the Central Government. That was rejected by Ext.P8. Thereafter, the Principal submitted Ext.P9 application on 28.8.2006, after complying with all the requisite formalities. While the said application was pending, the Writ Petition was filed by the affected students seeking appropriate reliefs. 3. The writ petitioners happened to opt for the aforementioned two subjects for PG Courses only by sheer chance. They never knew that the courses do not have approval of the Central Government or affiliation to the University. Seeing the prospectus and notification for Entrance Examination, they applied bona fide and based on their option and marks secured, they happened to be allotted to the said two courses for which sanction was not obtained from the Central Government. In the above context, the Kerala Government did not permit starting of PG Courses for the aforementioned two subjects after the academic year 2005-2006. So, only two batches of students happened to join the PG Courses in the aforementioned two subjects. Now, we are told that they have already completed the courses. In the above factual background, the learned Single Judge has issued certain directions, on equitable grounds. Now, it is impossible to cure any defect retrospectively and even if any defect is cured, the same W.A.No.626/2007 4 cannot have any impact on the courses already held and completed. We are told that the Kerala University had held the first year examination for the students of Thiruvananthapuram Homoeo Medical College and the results are yet to be published. As far as the Calicut Homoeo Medical College is concerned, the second appellant has already granted ex post facto sanction for the courses started in 2004- 2005 and 2005-2006. If that be so, we find no reason why the second appellant should not give ex post facto sanction to the courses started in the Thiruvananthapuram Homoeo Medical College during the said two years. The learned counsel for the writ petitioners submitted that, according to his instructions, the second appellant has already taken a decision to grant ex post facto sanction for the courses in the Thiruvananthapuram Homoeo Medical College also. If the second appellant has not given sanction, it should give sanction, in view of its decision concerning the Calicut Homoeo Medical College. Regarding the first appellant, we notice that it is submitted by it before the learned Single Judge as follows: “Central Government counsel pointed out that there may not be any objection for the Government of India to approve Post Graduate courses in the two subjects commenced by the two colleges in Kerala. In other words, it has to be assumed that if applications were submitted in time, Government would have granted its approval.” W.A.No.626/2007 5 The first appellant does not have a case that it did not make such a submission before the learned Single Judge. If that be so, the appeal at the instance of the first appellant against the judgment under appeal is not maintainable. As noticed earlier, since the second appellant has already given ex post facto sanction to the very same courses in Calicut Homoeo Medical College, it cannot be allowed to pursue this appeal. In view of the above position, the Writ Appeal is dismissed. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS