IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 12556 of 2008(T) ------------------------------------------ PETITIONER(S): ------------------------- DR.A.K.B SADBHAVANA MISSION TRUST, SARADHA HEALTH CENTRE, KOYILANDY, REPRESENTED BY ITS MANAGER DR.SANU JOHN KOVOOR, AGED 35 YEARS, S/O. K.A. ELIAS. BY ADVS. MR.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, MR.JAGAN GEORGE, MR.K.A.NOUSHAD, MR.P.G.PRAMOD. RESPONDENT(S): --------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA,SECRETARIAT,TRIVANDRUM. 2. THE PRINCIPAL & CONTROLLING OFFICER, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, TRIVANDRUM. BY GOVERNMENT PLEADER SMT. SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/03/2009 ALONG WITH WPC NO. 28845 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.12556/2008 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GOVERNMENT ORDER DTD. 20/12/2004. EXT.P2: COPY OF THE ORDER DTD. 26/02/2007 IN C.C.C.NO.14/2007 OF THIS HON'BLE COURT. EXT.P3: COPY OF THE JUDGMENT DTD. 5/03/2007 IN THE WRIT PETITION NO.27538/2005. EXT.P4: COPY OF THE ORDER DTD. 16/07/2007 IN CCC.NO.1034/2007 OF THIS HON'BLE COURT. EXT.P5: COPY OF THE ORDER DTD. 2/01/2008 IN I.A.NO.16157/07 IN W.P.C.NO.27538/2005 OF THIS HON'BLE COURT. EXT.P6: COPY OF THE AGREEMENT DTD. 7/01/2008 EXECUTED BY THE PETITIONER SENT TO THE 2ND RESPONDENT IN DUPLICATE FOR SIGNATURE. EXT.P7: COPY OF THE COVERING LETTER DTD. 7/01/2008 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P8: COPY OF THE REPRESENTATION DTD. 10/03/2008 SUBMITTED BY THE PETITIONER. EXT.P9: COPY OF G.O.33877/J2/2006/H&FWD DTD. 6/07/2007 OF THE 1ST RESPONDENT. EXT.P10: COPY OF PROSPECTUS ISSUED FOR THE ACADEMIC YEAR 2008-2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI, J ------------------- W.P.(C)s.12556/2008 &28845/2008 -------------------- Dated this the 20th day of March, 2009 JUDGMENT Common issues arise for consideration in these two writ petitions. Therefore, they have been heard together and are being disposed of by a common judgment. Though counter affidavit has been filed only in Writ Petition No.28845/2008, the same could be adopted for the purpose of the other writ petition also. Therefore, I will refer to the facts in Writ Petition No.12556/2008. 2. I heard Mr.Babu Karukapadath and Mr. Babu Thomas, learned counsel for the petitioners and Smt.Sudha Devi, learned Government Pleader. 3. Petitioner, a registered Public Trust, created for the benefit and upliftment of Scheduled Caste/Scheduled Tribes in the field of education is running a Homeopathic Hospital by name “Sarada Health Centre” at Koyilandi. An application was W.P.(C)s.12556 & 28845/2008 2 submitted by the petitioner before the Government for starting a course in Nurse-cum-Pharmacist in Homeopathy in the self-financing sector. Government passed an order as Ext.P1 sanctioning the conduct of such a course, but subject to conditions mentioned therein. This included execution of an agreement between the management and the Government. 4. According to the petitioner, it was willing to execute the agreement. Government did not take any steps in that regard. Government only passed an order on 6.7.2005 which according to the Government, dealt with the right of selection of the students and fixation of fees. This was challenged by the petitioner in W.P.(C).27538/2005. An interim order was passed by a learned Judge of this Court on 25.10.2005, requiring the Principal and controlling Officer, Government Homeopathic Medical College, Thiruvananthapuram, to invite applications for admission to the seats in the Government quota within two weeks. Petitioner was required to abide W.P.(C)s.12556 & 28845/2008 3 by the fees structure and the mode of admission of students as fixed in the Government order, which was challenged in the said case, as an interim measure, expressly without prejudice to the petitioner's contentions in the writ petition. The balance 50% of the seats could be filled up by the management and it was so permitted. 5. It seems that the Government did not abide by the said interim order. It further seems that an application for review of the interim order and also an appeal were preferred by the Government, but without success. Subsequently, by yet another interim order dated 23.5.2005, this Court permitted the petitioner to go ahead and fill up the remaining seats also on the basis of merit and as per the first order. 6. There is a dispute as to who was responsible for the non execution of the agreement. But it is an undisputed fact that the agreement was not executed. W.P.(C)s.12556 & 28845/2008 4 7. Writ Petition No.27538/2005 in which the aforementioned interim orders were passed came to be disposed of, as per Ext.P3 judgment in Writ Petition No.12556/2008 in which this Court upheld the right of the management to fix the fees and conduct selection. This Court recognized the right of the petitioner to conduct the selection in a fair and reasonable manner and also fix the fee. At the same time, petitioner should accept the Government’s power to fix the qualification as also the dates of commencement of course, it was observed. 8. According to the petitioner, though it had expressed its willingness to execute the agreement, Government did not come out with the draft of the agreement in time. It therefore, sent draft agreement as Ext.P6 incorporating certain clauses to which Government has not responded to, and hence W.P.(C).12556/2008 has been filed for a direction to the Government to accept Ext.P6 W.P.(C)s.12556 & 28845/2008 5 agreement and then proceed further, in accordance with law. 9. W.P.(C).28845/2008 has been filed by the students who prosecuted the course Nurse-cum- Pharmacist in Homeopathy during the year 2007-08. They have completed the course on 22.8.2008. Their grievance is that the Government has not yet conducted the examination, in the course Nurse- cum-Pharmacist. Hence the said writ petition, seeking a direction to the Government to see that the examination is conducted for the students who had prosecuted their course during the year 2007-08 and had completed the same on 22.8.2008, within a time frame. 10. The stand of the Government in the counter affidavit filed by it in Writ Petition No.28845/2008 is to the effect that the original order of sanction issued by the Government permitting the petitioner to start a course in NCP was conditional upon the management executing an agreement with the W.P.(C)s.12556 & 28845/2008 6 Government. Government is willing to conduct an examination for the students who had prosecuted the course in the petitioner’s college, provided the petitioner executes the agreement, draft of which has been forwarded to the petitioner. Reference is made in this regard to a detailed order passed by the Government as Ext.R2(c), considering the contentions of the petitioner as well on 10.6.2008 and the Government having reiterated the necessity to execute an agreement, as a condition for the Government to approve the conduct of NCP course by the petitioner in its institution. 11. I have referred to the fact that the Government had issued sanction to the petitioner to conduct a course in NCP. I have also referred to the interim order passed by this Court in W.P.(C) 27538/2005 inter alia permitting the petitioner to start the course, and also directing the Government to forward a list of its nominees for 50% of the seats and the subsequent interim order passed by this Court, wherein, after noting the Government’s W.P.(C)s.12556 & 28845/2008 7 reluctance in complying with the earlier interim order, this Court had permitted the petitioner to go ahead and fill up the remaining 50% seats also. Though such permission was granted by way of interim orders, the final judgment in the said writ petition, Ext.P3, would indicate that this Court had affirmed the right of the petitioner to commence the course, subject to certain aspects which have been highlighted in the said judgment. Thus, at this distance of time, it will not be open to the Government to take the stand that the course prosecuted by the students admitted by the petitioner, for the year 2007-08 cannot be treated as regular. 12. But at the same time, respondents are right in insisting the petitioner to execute the agreement which will in effect, discipline the running of the institution by the petitioner and make it subject to necessary control to be exercised by the Government in that regard. Draft of the agreement W.P.(C)s.12556 & 28845/2008 8 forwarded by the Government has been produced along with the counter affidavit, as Ext.R2(c). 13. Mr.Babu Karukapadath learned counsel for the petitioner submits that several clauses in Ext.R2(c) are not in conformity with Ext.P3 judgment. I am satisfied that an agreement has to be executed and it is also clear that the agreement will have to be in conformity with Ext.P3 judgment in Writ Petition No.27538/2005. I would only indicate that the judgment has upheld the right of the petitioner to admit students and devise a method of selection. At the same time, Ext.P3 judgment has upheld the right of the Government to fix the minimum qualification of the students to be admitted to the course. In fact the petitioner has also no objection in that regard in accepting 60% marks in the S.S.L.C as the minimum required. Government's power to fix the minimum qualification and the power to conduct the examination and supplementary examination with the aid of the Examination Board will have to be accepted by the petitioner. W.P.(C)s.12556 & 28845/2008 9 Petitioner does not have any objection to the same. But I am in agreement with the submission of the learned counsel for the petitioner that the approval by the Government for the course in question, need not be renewed from year to year. Once an institution is established and the course offered by it is approved, then renewal of the approval every year brings about an element of uncertainty and would also instill an unnecessary anxiety in the minds of the students. Instead it would suffice, if the Government makes it clear that the approval is liable to be withdrawn, if anyone of the conditions which is imposed by it and which could be legitimately made part of the agreement to be executed with the Government are not complied with. Petitioner also does not have any challenge against clause 5 in Ext.R2(c) agreement, which stipulates that the syllabus and pattern of the examination shall be common to the Government and Private sector and also to clause 6 and 7 of the agreement which deals with the centre of the examination and the adoption of the syllabus and W.P.(C)s.12556 & 28845/2008 10 curriculum of the Nurse-cum-Pharmacist Course in the Government Homeopathic Medical Colleges in the institution run by the petitioner in the private sector. 14. In my view, clauses in relation to which the petitioner has a disagreement are therefore, quite narrow and these objections may be taken note of by the Government and a revised agreement may be forwarded to the petitioner , keeping in mind the above observation as also the declaration made by this Court in Ext.P3 judgment. This shall be done, within one month from the date of receipt of a copy of this judgment. 15. I make it clear that neither the petitioner nor the respondents should further prolong the execution of the agreement. The agreement shall be finalized in accordance with the observations made above as also in Ext.P3 judgment. Once the agreement is executed, Government shall take steps to see that the examination for the NCP W.P.(C)s.12556 & 28845/2008 11 Course is conducted without any further delay, at any rate, within a period of four weeks from the date on which the agreement is executed. Writ petitions are disposed of as above. V.GIRI, Judge mrcs