IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 24933 of 2011(N) -------------------------- PETITIONER: --------------- MAR GREGORIOUS MEMORIAL MUTHOOT MEDICAL CENTRE, COLLEGE ROAD, KOZHENCHERY-689641, REPRESENTED BY THE PARTNER DR.GEORGIE KURIEN MUTHOOT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT: --------------- KERALA UNIVERSITY OF HEALTH AND ALLIED SCIENCES, REPRESENTED BY THE REGISTRAR, MEDICAL COLLEGE P.O., THRISSUR-680596. BY ADV. MR. P. SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.10.2011 ALONG WITH W.P.(C) NO.. 26443 OF 2011 THE COURT ON 13.10.2011 DELIVERED THE FOLLOWING: WP(C).No. 24933 of 2011(N) APPENDIX PETITIONER'S EXHIBITS EXHIBIT-P1: TRUE COPY OF THE APPROVAL NO.18-16/6120-INC DATED 24.2.2010 GRANTED BY THE INDIAN NURSING COUNCIL. EXHIBIT-P2: TRUE COPY OF THE ORDER NO.G.4248/11/NC DATED 8.8.2011. EXHIBIT-P3: TRUE COPY OF THE CONSENT OF AFFILIATION NO.2146/AC.1/2/2010/KUHAS DATED 23.6.2011. EXHIBIT-P4: TRUE COPY OF THE REQUEST DATED 12.8.2011 GIVEN BY THE PETITIONER. EXHIBIT-P5: TRUE COPY OF THE COMMUNICATIONNO.2146/AC.1/2/2010/ KUHAS DATED 19.4.2011 GIVEN BY THE RESPONDENT UNIVERSITY. EXHIBIT-P6: TRUE COPY OF THE REPLY DATED 4.5.2011 GIVEN BY THE PETITIONER. EXHIBIT-P7: TRUE COPY OF THE COMMUNICATION NO.2146/AC.1/2/2010/ KUHAS DATED 16.08.2011. EXHIBIT-P8: TRUE COPY OF THE REQUEST DATED 22.8.2011 GIVEN TO THE PRINCIPAL SECRETARY TO GOVERNMENT. RESPONDENTS' EXHIBITS EXHIBIT R1A A TRUE COPY OF THE RELEVANT PORTION OF THE INSPECTION REPORT DATED 22.03.2011. EXHIBIT R1B A TRUE COPY OF THE LETTER DATED 30.06.2011 SENT BY THE 1ST RESPONDENT. EXHIBIT R1C A TRUE COPY OF THE LETTER DATED 15.07.2011 SENT BY THE 1ST RESPONDENT. /TRUE COPY/ P.S. TO JUDGE. (CR) P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) Nos.24933 & 26443 OF 2011 ......................................................................... Dated this the 13th October , 2011 J U D G M E N T Is the respondent University is supposed to act just as a 'Rubber Stamp' in the matter of granting affiliation to Institutions invoking the power under Sections 50/53 of the Kerala University of Health Sciences Act,. 2010 (hereinafter referred to as University Act), once approval is granted in respect of the courses and infrastructure by the Indian Nursing Council (INC) and Kerala Nurses and Midwives Council (KNMC), forms the point to be considered. 2. The factual position as narrated in the W.P.(C) 24933 of 2011 is that the petitioner, who is a Self Financing Institution was running B.Sc Nursing Programme right from the year 2003 and was granted Ext.P1 sanction by the Indian Nursing Council for conducting M.Sc Nursing Programme in three different W.P.(C) Nos.24933 & 26443 OF 2011 2 faculties such as Medical Surgical Nursing, Psychiatric Nursing and Paediatric Nursing with an intake of four students each. Subsequently, the State Council constituted under the Kerala Tavancore Cochin Nurses and Midwives Act, granted Ext. P2 permission to conduct the P.G. Course only in two disciplines, i.e. Medical Surgical Nursing and Psychiatric Nursing with an intake of four students each. The applications preferred by the petitioner before the respondent University to grant affiliation in terms of the sanction, as given above, was rejected in respect of the Psychiatric Nursing (M.Sc Mental Health Nursing), while in respect of the M.Sc Medical Surgical Nursing, some defects were pointed out, asking the petitioner to have it cured and report compliance, which in turn is under challenge. 3. In W.P.(C) No. 26443 of 2011, the petitioner was given permission for Post Basic B.Sc Nursing Programme with enhanced capacity to have an intake of 50 students as per Ext.P1 order dated 21.04.2010 subject to the approval of the State Nursing Council and the University/Board for 2010-11. Pursuant to further steps, the University passed Ext.P4 provisional order W.P.(C) Nos.24933 & 26443 OF 2011 3 of affiliation dated 04.08.2011 to have the course with an annual intake of 30 students subject to the conditions stipulated therein. Subsequently, the petitioner obtained Ext.P2 sanction dated 31.08.2011 issued by the State Council permitting to have an intake of 50 students for the Academic year 2011-12, which made the petitioner to apply for such enhancement before the University in the matter of affiliation as well, as per Ext. P5, which however was declined as per Ext. P6 dated 03.09.2011, confirming Ext. P4 and informing that the request could be considered only in respect of the Academic year 2012-13 , if applied in the prescribed format and on satisfaction of the norms stipulated. The petitioner is before this Court seeking for affiliation for the entire enhanced intake of 50 students for the year 2011-12 itself. 4. The crux of the contentions raised by both the petitioners is that, the petitioners having been given necessary sanction/approval by the Central Authority, ie. Indian Nursing Council under the Central Act and also by the State Authority, ie., Kerala Nurses and Midwives Council, constituted under the W.P.(C) Nos.24933 & 26443 OF 2011 4 State Act, the University is bound to grant affiliation in tune with the orders passed by the Indian Nursing Council and Kerala Nurses and Midwives Council respectively. It is also contended that the University does not have any power or authority to decline affiliation in respect of any course sanctioned as above or reduce the intake by stipulating some or other norms of their choice. Reliance is sought to be placed mainly on two decisions rendered by a Full Bench of this Court in 2008(2) KLT 1027 (FB) (Vikram Sarabhai E. Trust & B.Ed College v. University of Calicut ) and 2010 (3)KLT 367 (FB) (Velayudhan Memorial Trust v. State of Kerala). 5. The respondent University has filed a statement in the former case seeking to controvert the statement of allegations raised in the writ petition and also producing copies of the relevant documents marked as 'Exts. R1(a) to R1(c)'. It is pointed out that the affiliation to be given by the University is not automatic and that the same can be granted only in conformity with the report of the Inspection Committee deputed by the University. It is also stated that the Committee deputed by the W.P.(C) Nos.24933 & 26443 OF 2011 5 University made a strategic report, which was considered and the petitioner was let known of the defects/deficiencies, asking them to have it cured and report compliance for proceeding with the matter. It is also asserted that no compliance has been reported by the petitioner after curing the defects/deficiencies and the petitioner cannot have any vested right to have affiliation without curing the defects pointed out by the University. The idea and understanding of the petitioners as to the scope of the judgments passed by the Full Bench of this Court, cited supra, is also seriously disputed, pointing out that the rights and liberties of the University to grant affiliation with reference to the relevant provisions of the University Act/Statute and result of the Inspection was never a subject matter of consideration in the aforesaid cases. It is also contended that the scope of the decisions rendered by the Full Bench as aforesaid has been considered by another Single Bench of this Court as per the decision reported in 2010 (4) KLT 318 ( (Upasana College of Nursing vs. Kerala University For Health and Allied Sciences) and the decision rendered by a Division Bench on W.P.(C) Nos.24933 & 26443 OF 2011 6 appeal preferred by the aggrieved institutions, directing the University to grant affiliation, has already been stayed by the Apex Court as per the interim order dated 12.11.2010 in SLP (Civil) 30976/2010. 6. Heard Mr. George Poonthottam, the learned Counsel for the petitioner as well as Mr.P. Sreekumar, the learned Standing Counsel for the University, at length. 7. The point that arose for consideration in the earlier Full Bench decision, i.e. the decision reported in 2008(2) KLT 1027 (FB), was whether the University was bound to grant affiliation to a B.Ed college, for which the petitioner had obtained recognition under Section 14(3) (a) of the National Council for Teacher Education Act, 1993 (NCTE Act) from the Southern Regional Committee of the National Council for Teacher Education. Notwithstanding the report of the said Committee of the University, that the College did not have the requisite infrastructural facilities, after discussing the statutory prescriptions and the case law in detail, the Bench arrived at a finding that by virtue of the specific provisions under the Statute, W.P.(C) Nos.24933 & 26443 OF 2011 7 the University was bound to grant affiliation to the B.Ed college . It was also observed that if at all the University was aggrieved in any manner, on finding that the actual infrastructural facilities were not available, it could be treated as a case of obtaining recognition by fraud, under which circumstance it would be open for the University to bring it to the notice of the NCTE to have the affiliation cancelled under Section 17 of the NCTE Act or may challenge that recognition by filing an appeal under Section 18 of the said Act or even could approach this Court challenging the recognition by way of a writ petition. However, the position involved in the present case stands on a different footing in view of black and white difference between the statutory prescriptions under the NCTE Act and those under the Indian Nursing Council Act and the Kerala Travancore Cochin Nurses and Midwives Act . 8. By virtue of the power vested with the Indian Nursing Council under Section 16(1) of the Indian Nursing Council Act, the Council is empowered to formulate necessary 'Regulations' to recognise the Qualifications, Curriculum/Syllabus and such W.P.(C) Nos.24933 & 26443 OF 2011 8 matters in connection with the granting of sanction to start the course. Invoking the said power, the Indian Nursing Council has formulated Regulations. Regulation No.78 governs the issue more particular, which reads as follows: “78. Procedure for establishing a School or College of Nursing Education and Training. : 1. Any organization under the Central Government, State Government, Local Body or a Private or Public Trust, Mission, Voluntary Body registered under Society Registration Act or a Company registered under Company's Act who wishes to open nursing education institution, shall obtain the No objection/Essentiality Certificate from the State Government 2. The Indian Nursing Council on receipt of the proposal from the Institution to start a School/College of Nursing will undertake the first inspection of the proposed Institute to assess its suitability with regard to physical infrastructure, W.P.(C) Nos.24933 & 26443 OF 2011 9 clinical facility and teaching faculty. 3. After the receipt of the permission to start training programme from Indian Nursing Council, Institution shall obtain the approval from the State Nursing Council and Examination Board/University. 4. Institution shall admit the students only after taking approval of State Nursing Council, Examination Board/University. 5. The Indian Nursing Council may conduct inspection of the Institution every year till the first batch completes the programme. Permission will be given year by year till the first batch completes prescribed Nursing course. The Council may also conduct periodical inspections to ensure standard of nursing education. 6. The decision of INC as regards the suitability of the Institution and the number of seats for each programme shall be final. The SNRC and Examination Boards shall approach INC first before W.P.(C) Nos.24933 & 26443 OF 2011 10 making any departure from the approval granted by INC. 7. The Teaching institutions desirous of obtaining permission/approval/suitability for starting any nursing programmes or for seeking increase of seats shall apply afresh with due justification.. INC shall consider such applications on the merits of each case. 8. Syllabus prescribed by Indian Nursing Council in the form of Regulation and Guidelines from time to time shall be strictly adhered and followed by Nursing Institutions/Examination Boards/SNRC and University.” 9. After considering the issue as to the relative powers, rights and liberties of the Central Council and the State Council under the relevant enactments at length and confirming the law declared by the Division Bench of this Court in 2006(2) KLT 612 (National Medical Educational Charitable Trust vs. Kerala Nursing and Midwifery Council), the subsequent Full W.P.(C) Nos.24933 & 26443 OF 2011 11 Bench of this Court in 2010 (3) KLT 367( Velayudhan Memorial Trust vs. State of Kerala ) held that the Authority of the National Council is limited to the establishment of standards of education which includes prescribing the appropriate Syllabus, norms of training, prescription of appropriate infrastructure for conducting the courses etc; whereas the question whether a particular institution which proposes to impart education in Nursing etc is to be recognised, having regard to the norms and standards prescribed by the National Council and also having regard to the availability of the infrastructure etc. of a particular institution, is a matter to be decided by the State Council established under the State Act. It was accordingly held that clauses (2) and (6) of Regulation 78, in so far as they purport to obligate the institutions proposing to impart training in Nursing and allied courses to seek 'prior approval' of the National Council are ultra vires of the authority of the National Council, making it clear that the appropriate authority to consider such applications is the 'State Council' established under the State Act and further that, the W.P.(C) Nos.24933 & 26443 OF 2011 12 State Council, while granting or declining permission/approval for commencement of any training course in Nursing or allied courses covered under the above mentioned two enactments (Central and State), is bound by the norms and standards stipulated by the National Council. The appeals were disposed of, directing the State Council to consider afresh the case of each one of the appellants for conducting the various courses, also giving consequential direction to the University to give affiliation to the institutions concerned, in terms of the decision to be taken by the State Council with regard to the particular course/number of seats, however observing that the approval already granted either for the course or seats may not be withdrawn pursuant to the judgment . 10. On going through the above verdict and on hearing the learned Counsel appearing for both the sides, this Court finds considerable force in the submission made by the learned Standing Counsel for the University that the decision rendered by the Full Bench is not an authority to hold that affiliation to be given by the University is only an empty formality or that once W.P.(C) Nos.24933 & 26443 OF 2011 13 sanction is given by the State Council as aforesaid, affiliation to be given by the University is automatic. There is no such declaration of law in the decision rendered by the Full Bench referring to the relevant provisions of the University Act/Statute or as to the relative rights and liberties of the University in relation to the powers and authority of the Indian Nursing Council/Kerala Nurses and Midwives Council. 11. The powers of the University to grant affiliation is dealt with under Section 50 of the University Act, while Section 51 deals with the procedure for permission. It is stated that the First Statutes of the Respondent University are to be framed by the State, which is yet to be done and that applications being submitted by the concerned institutions are being dealt with by the newly constituted respondent University in terms of the First Statutes and other relevant provisions of the respective University, under whose jurisdiction the institutions were earlier situated. 12. The scope and applicability of the decision rendered by the Full Bench, cited supra, came to be considered by another W.P.(C) Nos.24933 & 26443 OF 2011 14 learned Judge of this Court, in a case involving exactly similar issue , ie. , whether the affiliation to be given by the University is automatic, once sanction/permission is given by 'INC/KNMC' to have the course with the specified intake. Even though much reliance was placed on the above decision rendered by the Full Bench, after a threadbare analysis of the relevant provisions and precedents, it was held by the learned Judge as per the decision reported in 2010 (4) KLT 318 (Upasana College of Nursing vs. Kerala University For Health and Allied Sciences) that, granting of affiliation by the University is not an automatic exercise once sanction/permission is obtained from the INC/KNMC. Interference was declined and the writ petitions preferred by the concerned Institutions were dismissed as devoid of any merit. The matter was taken up in appeal by the aggrieved institutions. After detailed hearing, the Division Bench, vide judgment dated 13.10.2010 in W.A.No. 1715 OF 2010 and connected cases, held that the process of affiliation was never automatic. The relevant portion of the judgment as contained in paragraph 2 is as follows: W.P.(C) Nos.24933 & 26443 OF 2011 15 “According to the appellants once appellants are granted approval for intake of additional students to the existing nursing courses and approval for commencement of additional course by both the Central and State Nursing Councils vide Exts.P1 and P2, affiliation by the University is automatic and this position of law is settled by various decisions of this Court referred to in the impugned judgment of the learned Single Judge. We are unable to accept this position because in our view the grant of affiliation is not an empty formality by the University. The University which awards the degree certificates can always ensure that students undergo the proper course study in an eligible institution in accordance with the curriculum prescribed by the University.” (emphasis supplied) 13. However, even after arriving at such a finding, a positive direction was given to the University to consider the applications preferred by the Institutions and to grant provisional affiliation to the additional intake of 15 students, ignoring the delay in submitting the applications. It was also observed that, if the W.P.(C) Nos.24933 & 26443 OF 2011 16 University found any inadequacy, a conditional affiliation should be granted asking the appellants to make up for deficiency so that affiliation could be regularised on making up the deficiencies. It is the said verdict that has been challenged by the University before the Supreme Court by filing SLP 30976/2010 preferred at the instance of the University, wherein notice was ordered on 12.11.2010 also granting interim stay, making it clear that, if any student has already been admitted pursuant to the verdict dated 13.10.2010, such students would be permitted to continue at their own risk, subject to the final outcome of the proceedings pending before the Supreme Court . 14. From the above, it is clear that the contention of the University, that granting of affiliation is never automatic, stands virtually accepted by the Division Bench of this Court ( in paragraph 2 of the common judgment in W.A.Nos.1715 of 2010 and connected cases); while the challenge raised by the University before the Apex Court is in respect of the positive direction given contrary to the said finding, which in turn has been stayed by the Apex Court. Further, referring to the W.P.(C) Nos.24933 & 26443 OF 2011 17 relevant provisions under the Calicut University Act and the Calicut University First Statutes, 1977, it has been held by the Division Bench of this Court in W.A.Nos. 241 and 249 of 2009 (reported in 2009(3) KLT SN 78 (C.No.73)- University of Calicut vs. Amala Institute of Medical Sciences) that the said University is having ample power to inspect the college seeking affiliation and that the Institution is bound to furnish any information called for in this regard. It has also been held that, if there is any serious deficiency in the manner of running the college, the University can definitely take action against the college and 'dis-affiliate' it; the power to dis-affiliate being corollary to the power to affiliate and that the University is vested with the power to conduct necessary inspection and to satisfy itself as to the availability of infrastructure and such other aspects. As the primary function of the University is to guarantee quality education, maintaining/ regulating academic standards of the affiliated institutions, it is open for the University to prescribe conditions for recognition of the Institutions, which is not in conflict with the norms prescribed W.P.(C) Nos.24933 & 26443 OF 2011 18 by the INC under the Central Act . As such, the contention of the petitioners that the respondent University is bound to 'sign on the dotted lines' for granting affiliation, the petitioners having obtained sanction/approval from the Central/State Council, is wrong and unfounded and it is declared accordingly. 15. Coming to the factual position, the petitioner in W.P. (C) 24933 of 2011 had approached this Court earlier by filing W.P. © 14733 of 2011, which was disposed of directing the University to grant “consent of affiliation”; obviously for the reason that, giving consent of affiliation stands entirely on a different footing as to the granting of affiliation by the University, subject to the satisfaction of the norms in this regard. It was accordingly that Ext. P3 “consent of affiliation” was granted on 23.06.2011, making it clear that the University will consider granting of provisional affiliation of new courses and enhancement of seats subject to: the recognition by the respective Central and State Council; fulfillment of conditions specified by the State and University; rectification of deficiencies already pointed out and final inspection by the University. It W.P.(C) Nos.24933 & 26443 OF 2011 19 was also made clear in Ext. P3 that 'consent of affiliation' will not enable the institution to make admissions to the new courses and enhanced seats and that admission shall be made only after obtaining 'provisional affiliation' to the new courses and enhancement of seats. 16. The case of the petitioner is that the impugned proceeding is based on the inspection conducted by the Commission appointed by the University on 22.03.2011 and 26.03.2011 , whereas the petitioner has already made up all the deficiencies and the same was got satisfied by the State Council in their inspection held on 02.08.2011 leading to Ext. P2 order by the State Council sanctioning the course and intake. It is asserted by the petitioner that the deficiencies pointed out by the University as per Ext. P5 have been cured and compliance has been reported as per Ext. P6 and as such, Ext. P7 issued by the University is liable to be interfered. 17. It is obvious from Ext.P6 reply dated 04.05.2011 that it does not constitute 'full compliance' of curing the defects/ deficiencies, but mostly refers to the steps being taken by the W.P.(C) Nos.24933 & 26443 OF 2011 20 petitioner to have the defects cured pointed out by the University in Ext. P5 (pursuant to their inspection and commission report dated 22.03.2011 and 26.03.2011 respectively). It has also to be borne in mind that the said inspections were much prior to the granting even the 'Consent of affiliation' dated 23.06.2011 (Ext. P3) and as made clear therein, the question of affiliation is to be considered only subject to curing the deficiencies. No document has been produced before this Court as to the compliance reported by the petitioner to the University, but for Ext. P6. So also, Ext. P4 communication dated 12.08.2011 written by the petitioner does not refer to Ext. P3 or the further course after Ext. P6 reply already submitted by the petitioner. Similarly, Ext. P8 dated 22.08.2011 preferred by the petitioner is before the Government as to the rectification of the deficiencies pointed out by the 'DME' and not with reference to any of the proceedings of the University. Further, no copy is seen marked to the University, though a vague averment is raised in paragraph '5' of the Writ Petition that the petitioner has forwarded a copy of Ext. P8 to the University as well. In view of the law declared, the W.P.(C) Nos.24933 & 26443 OF 2011 21 University is bound to consider the application for affiliation only on reporting 'full compliance' with regard to the deficiencies pointed out and it is for the petitioner to make available necessary infrastructure causing the University to conduct further inspection/verification and to have the application for affiliation acted upon accordingly. 18. In respect of W.P.(C) 26443 of 2011, it is not discernible from Ext. P2 sanction given by the