Provide opportunity to vindicate before denying provisional affiliation: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY THE 22ND DAY OF JANUARY 2021 2ND MAGHA 1942 WA. No.155 OF 2021 AGAINST THE JUDGMENT DATED 05.01.2021 IN WP(C) 26923 2020(M CENTURY INTERNATIONAL INSTITUTE OF DENTAL SCIENCE AND RESEARCH CENTRE POINACHI KASARAGODE 671 541 BY ADVS.SRI.KURIAN GEORGE KANNANTHANAMNo.269220 by which a learned single Judge of this Court declined to grant the reliefs sought for by the writ petitioner appellant and dismissed the writ petition by ordering thus “32. In view of the law laid down in the decisions referred to supra no mandamus can be issued directing the 1st respondent University to grant continuation of affiliation or to direct the 3rd respondent to include the name of the petitioner s college for centralised allotment process for allotting students for BDS course for the academic year 2020 21 since no mandamus can be issued to direct an authority to do something contrary to law. In the result the petitioner is not entitled to any of the reliefs sought for. The writ petition fails and the same is 2. Facts leading to the filing of the instant appeal are that appellant writ petitioner is the Principal of an unaided Dental College. He has filed the writ petition against the refusal of Kerala University of Health Sciences respondent No.1 to grant extension of affiliation to the Institute of Dental Science and Research Centre for the year 2020 2021. 3. Appellant has filed the writ petition stating that the College was established in the year 2003 on the Letter of Permissionissued by the W.A. 155 2021 Central Government on the recommendation of the Dental Council of India DCI). At that time the College was affiliated to Kannur University 4. As per the provisions of the Dentists Act 1948 and the regulations of DCI LOP has to be renewed year till the College gets recognition Recognition is granted by the Central Government at the time when the first batch passes out and this is done after a thorough inspection by the DCI According to the appellant once recognition is granted no further LOP of the Central Government is needed to make admissions and the said recognition has to be renewed every five years 5. Appellant college has further stated that after coming into existence of the Kerala University of Health Sciences affiliation of the college stood transferred to the new University. The University has been renewing the affiliation of all the unaided schools under the University on an year to year basis only and affiliation of the College was periodically renewed upto and including the last year i.e. 2019 20. Appellant has applied to the University for continuation of affiliation for 2021. According to the appellant there is no provision in the University Act or the Statutes which lay down the conditions under which continuation of affiliation can be granted or refused. 6. Appellant has further stated that the University has issued a letter dated 10.01.2020 to the petitioner directing production of clearance certificate from the Pollution Control Board and the licence obtained from the Grama Panchayat. Appellant has submitted a reply on W.A. 155 2021 22.01.2020 wherein it was mentioned that an arrangement is in existence for collection and disposal of bio medical waste with the Indian Medical Association Goes Eco Friendlyand that the application with the Pollution Control Board was pending. 7. Appellant has further stated that the Dental College was registered with the Panchayat in the name of the parent hospital of the College. Two weeks later Pollution Control Board has issued "Consent to Operate" dated 12.02.2020 to admit students every year till the College gets recognition. Once the College is recognized no further LOP is required W.A. 155 2021 There is no power vested with the University to issue LOPfrom year to year. This is specifically mentioned in Section 51(3) of the Kerala University of Health Sciences 2010. What is mentioned therein is no student shall be admitted by the College unless the “first time” affiliation is granted by the University. Therefore the embargo for admission is still “the first time affiliation”. To have a total picture we will have to go to the definition of an “affiliated college” mentioned in Section 2(b) of the Act. Here the affiliation is to the College and it is a one time affair. The only rider in Section 53(1) of the Act 2010 says that the College may apply for continuation of affiliation for the course of study for which affiliation “was” granted. Therefore the continuation of affiliation is a process in totality of the course and the college. Continuation of affiliation is not for a course batch yet to start but to which it was already granted Therefore the power under Section 53(1) cannot be confined to the Course admission yet to start. Nowhere in the Act statute it is provided that no admission shall be effected unless renewal of affiliation for that course is given by the University for any particular year F. It is further contended that none of the decisions referred to in the impugned judgment are applicable to the facts on hand The writ court has not considered the scope and power of the University in granting extension of affiliation to an existing course in an existing college especially in the light of Sections 51(3) & 53(1) of the KUHS Act 2010 read with St.10 of Chapter 21 of the First Statutes. The rejection of extension of affiliation to the appellant College by the University is beyond the scope of powers under Chapter 21 of the K.U.H.S W.A. 155 2021 10. Inviting the attention of this Court to Exhibit P8 dated 22.01.2020 letter of the Registrar Kerala University of Health Sciences Thrissur addressed to the appellant college Mr. Kurian George Kannanthanam learned Senior Counsel appearing for the appellant submitted that though the inspection team recorded that some of the teaching staff were found to be absent that the clinical requirements like Dental Extractions and RCT were not done according to the requirement that there was no proper documentation of details of attendance absence of staff for valuation duty and satellite clinic and that the college was informed that the application for continued affiliation would be considered on submission of a compliance report rectifying the deficiencies noted along with an affidavit on stamp paper worth Rs.200 to the effect that the deficiencies noted by the scrutiny committee are rectified within a fortnight by satisfying that there are major deficiencies a replydated 4.2.2020 was submitted by the appellant college along with documents annexed thereto explaining the reasons for their absence. As regards clinical requirements like dental extractions and RCT and documents of attendance etc. a suitable reply was also given by the college. 11. Learned Senior Counsel appearing for the appellant further submitted that thereafter on 4.5.2020 Kerala University of Health Sciences without considering the compliance report 4.2.2020 in proper perspective taking note some complaints addressed to the Governor of Kerala that the W.A. 155 2021 college is running without the permission and licence from the Chemmenad Grama Panchayat and Pollution Control Board and taking note of some feedback from some students rejected the request for continuation of provisional affiliation for the academic year 2020 21. 12. Learned Senior Counsel for the appellant further submitted that the complaint given by some of the students the inspection said to have been conducted by the Dental Council of Indiaand the report forwarded by them to the University were never a part of the deficiencies pointed out in Exhibit P8 letter dated 22.01.2020 sent to the appellant college for rectification and fresh reasons have been assigned by the Kerala University of Health Sciences for rejecting the application for continuation of provisional affiliation. 13. As regards the 1st deficiency that the Principal of the college was on leave on the inspection day and that there was no transfer of charge learned Senior Counsel for the appellant submitted that as per the procedure followed just for one days leave charge would not be transferred and that is done only if the Principal is on long leave. 14. Learned Senior Counsel further submitted that the appellant college has been running for fifteen years and that for mere absence of a few staff on the day of inspection continuation of provisional affiliation cannot be denied. He further submitted that it is not the case of Kerala University of Health Sciences that the appellant college did not appoint the W.A. 155 2021 required staff faculty for the purpose of imparting education and training and thus not satisfied the norms prescribed by the DCI the absence of staff teachers were duly explained in the compliance report. 15. Learned Senior Counsel further submitted that as per the rejection order dated 4.5.20201st respondent University has concluded that out of 6 medical staff who were on leave 3 of them have been sanctioned leave by the Principal of the appellant college. Among the 3 dental staff only one person has attended the valuation duty. If the other persons have not attended the valuation duty then the college can only take appropriate action if their absence from attending the valuation duty is not satisfactorily explained by them. As regards Mr. Sanjay Bhat Reader in the Department of Orthodontics explanation has also been submitted that he is on leave that the college has one Professor and two Readers in the Department of OMFC as per the requirement Regular Dental camps are arranged in the surrounding remote places and mobile dental van is routinely deployed for students to do adequate treatment. 16. Learned Senior Counsel further submitted that absence of a few staff faculty on a particular day in the case on hand inspection cannot be said to be a major deficiency for rejecting the request of the appellant college for continuation of provisional affiliation. He also submitted that the appellant college has been running for 15 years with recognition of the Dental Council of India. W.A. 155 2021 17. He further submitted that as per the norms of Kerala University of Health Sciences even if there is a shortage of 10% attendance continued affiliation cannot be denied. 18. He further submitted that without proper consideration of the compliance report 1st respondent University has erred in arriving at the conclusion that there was shortage of 10 Dental and 6 Medical Staff on the day of inspection and this amounted to shortage by 17% out of 92 staff faculty and on that basis denied the request for continued affiliation 19. Per contra Mr. P. Sreekumar learned standing counsel for the respondent University submitted that the deficiencies found are major in nature and were not rectified during inspection. Placing reliance on the decision in Medical Council of India v. Kalinga Institute of Medical Sciences reported in 11 SCC 530 learned standing counsel further submitted that inspection reports cannot be discarded. He prayed to sustain the orders impugned in the writ petition declining the request of the appellant college for continuation of provisional affiliation and consequently the impugned judgment. the material available on record 20. Heard the learned counsel for the respective parties and perused 21. Material on record discloses that by Exhibit P8 letter dated 22.01.2020 Registrar of Kerala University of Health Sciences respondent No.1 has rejected the application submitted by the appellant College for W.A. 155 2021 continuation of provisional affiliation on the basis of certain deficiencies Said letter reads thus “No.18534 29019 AC 1 Dent A1 KUHS Dated:22 01 2020 Century International Institute of Dental Sciences Research Kasaragod Sub: KUHS Academic Dental Continuation of Provisional Affiliation for the year 2020 21 Inspection report Deficiencies pointed out by the Scrutiny Committee rectification sought for reg Ref: 1. Report of the Inspection Commission dated 05 12 2019 2. Report of the Scrutiny Committee dated 07 01 2020 Attention invited to the references cited I am to inform you that on verification of the report of the inspection conducted at Century International Institute of Dental Sciences & Research Kasaragod for granting Continuation of Provisional Affiliation for the academic year 2020 21 the Scrutiny Committee pointed out the 1. The Principal was on leave on the day of inspection without transferring charge to Vice Principal 2. Five faculty were on leave on the day of inspection 3. Four faculty were unauthorised absent 4. Deficiency of one reader in the department of OMFS 5. The Clinical requirements like Dental extractions and RCT were not done according to the requirement 6. No proper documentation of the details of attendance valuation duty and satellite clinic Further the college has not submitted renewed MoU with District Taluk Hospital Kanhangad for the year 2020 21 In the circumstances your application for continuation of provisional affiliation for the year 2020 21 cannot be considered favourable. In order to consider your application for Continuation of Provisional W.A. 155 2021 Affiliation you are requested to submit a compliance report rectifying the above deficiencies along with an affidavit on stamp paperto the effect that the deficiencies noted by the scrutiny committee are rectified within a fortnight Yours faithfully Approved for Issue 22. Exhibit P9 is the compliance report dated 04.02.2020 with annexures and the same is reproduced hereunder Kerala University of Health Sciences Respected Sir Sub: KUHS Academic Dental 7 Continuation of Provisional Affiliation for the year 2020 21 Inspection report Deficiencies pointed out by the Scrutiny Committee rectification sought for reg Ref: Your letter No. 18534 2019 AC 1 Dent A1 KUHS dated the compliance report. We acknowledge the receipt of your letter No 18534 2019 AC 1 Dent A1 KUHS dated on 22 01 2020 by post on We refer to the letter under reference and respectfully submit 1. The Principal was on leave on the day of inspection without transferring charge to vice principal. Compliance: The inspection was a surprise inspection as per order and myself had no prior information about it and had taken casual leave for my personal works. The same was informed to W.A. 155 2021 inspectors on the phone. The transferring of authority to vice principal was done. The copy of it is being resubmitted as annexure 1. 2. Five faculty were on leave on the day of inspection. Compliance: the leave forms of the staffs who were on leave have been submitted as Annexure 2. 3. Four faculty were unauthorised absent. Compliance: The leave forms of four faculties have been attached in annexure 2. Total 9 staffs were on leave. There was no unauthorised absence. 4. Deficiency of one reader in the department of OMFS Compliance: We have one professor and two readers in the department of OMFS as per requirements. 1. Dr. Prashanth hegede2. Dr. Dheeraj3. Dr. Akshatha(reader) All these staffs are enrolled in the faculty enrollment programme and have numbers allotted by KUHS as respectfully submitted. However one reader Dr. Dheeraj was on leave on the day of inspection and leave form is attached Annexure 3 5. The clinical requirements like dental extractions and RC were not done as per requirements. Compliance: Adequate number of patients clinical material is there for student and interns training. Extractions are being done by students interns under supervision of staff. Also regular dental camps are arranged in surrounding remote places so that patients avail adequate dental care. Mobile dental van is routinely deployed for students to do adequate treatments. RCTs are done by interns and staff as per appointments on a given day Institution is taking various measures to further increase OP on a day to day basis. W.A. 155 2021 6. No proper documentation details of attendance valuation duty and satellite clinics. Compliance: Biometric attendance marking is used for all staff. The copy of it on the day of inspection is attached Annexure 4. Staffs have attended valuation as per university requirements. Valuation duty list is submitted as annexure 5. We are in the process of establishing a new satellite clinic and will be fully compliant as per university requirements. 7. Renewed MoU with district hospital Kanhangad for 2020 21. Compliance: The college has MoU signed for the academic year 2019 20. We have applied for the renewal of the permission from DHS for the year 2020 21. It will be submitted as soon as we receive it. Meanwhile our own 100 bedded hospital is almost complete and is being made fully functional within campus. In view of these we humbly request you to consider our application for continuation of provisional affiliation for BDS course for the year 2020 21. We comply with norms set by university and will work towards achieving higher standards of academic excellence. Respectfully submitted with annexures Thanking you 23. Exhibit P10 order dated 4.5.2020 passed by the 1st respondent is “KERALA UNIVERSITY OF HEALTH SCIENCES KUHS Academic Continuation of provisional affiliation for the academic year 2020 21 Century International Institute of Dental Sciences and Research Centre Kasaragode rejected orders W.A. 155 2021 ACADEMIC SECTION U.O.No 18534 Ac 1 Dent A112019 KUHS Date : 04 05 2020 Read : 1. Notification No. 30 AC B KUHS 2016 dated 23 07 2019 2. Letter No. ClIDS RC KUH Affi 2019 dated 17 09 2019 3. Report of the inspection commission dated 05 12 2019 4. Minutes of the Scrutiny Committee held on 07 01 2020 5. Report of the inspection commission dated 05 03 2020 6. Minutes of the Scrutiny Committee held on 18 03 2020 7. Decision no 59.38 of the Governing Council meeting held on 25 04 2020 University vide paper readabove invited application for continuation of provisional affiliation from colleges for courses affiliated to the University for the academic year 2020 21. The Principal Century International Institute of Dental Sciences and Research Centre Kasaragode vide paper readabove has submitted an application for continuation of provisional affiliation for BDS course with an intake of 100 seats for the academic year 2020 21. University has processed the application and the inspection commission has been appointed to verify the facilities available in the college for conducting the course. The inspection commission vide paper read above has submitted the inspection report. The Scrutiny Committee vide paper readabove has submitted the inspection report. The Scrutiny Committee vide paper read above after verifying the W.A. 155 2021 inspection report has pointed out the following deficiencies a. The faculty status on the day of inspection was mentioned that 6 Medical staff and 8 Dental staff were on leave. Apart from this 3 faculty were on duty leave for theory paper valuation at KUHS Headquarters and one reader in the Dept of Orthodontics was absentonly 1 person Dr. Avinash Dept. of Orthodontics had attended valuation duty at KUHS on 05.03.2020. The other 2 persons Dr. Ranjith Madavan and Dr. Anusha Oral Medicine & Radiology) had not attended valuation duty on the day of Inspection as per university records. iii. It was also noticed that one of the staff Dr. Shahanas Conservative Dentistry) whose sanctioned leave application submitted had signed in the attendance sheet. iv. Dr. Sajay Bhat Reader in the Dept of Orthodontics was not present on the day of previous inspection as well as on the day of current inspection. It was reported by the college that he is on long leave. But no substitute has been arranged so far. b. Satellite Clinics No satellite clinic facilities are provided by the college which is against the norms of KUHS as well as that of DCI. This deficiency was pointed out during the previous inspection also. c. Student Feedback: d. On interaction with students the Inspection team has reported that there are malpractices in the conduct of university examinations. They also mentioned that proper checking of students before entering the examination hall is not done Besides they have complained that the stipend given to the Interns is not as per KUHS norms. e. Hence there is a total shortage of 10 Dental and 6 Medical staff on the day of inspection. This amounts to 16 out of 92 that is around 17%. The shortage of one reader in the Dept of Orthodontics mentioned In the previous Inspection is still not W.A. 155 2021 3. The whole matter along with the recommendations of the Scrutiny Committee has been placed before the Governing Council and the Governing Council vide paper readabove has decided to reject the application of Century international institute of Dental Sciences and Research Centre Kasaragode for Continuation of provisional affiliation for the year 2020 21 considering the major deficiencies. 4. The Hon ble Vice Chancellor has accorded sanction to implement the decision of the Governing Council readabove and to reject the application of Century International Institute of Dental Sciences and Research Centre Kasaragode for Continuation of provisional affiliation for the year 2020 21 .eased on the major deficiencies The Principal Century International Institute of Dental Sciences and Research Centre Kasaragod.” 24. Exhibit P11 is the appeal filed by the appellant against Exhibit P10 order dated 04.05.2020 issued by the 1st respondent University wherein it was stated thus “Sub: Appeal for granting Continuation of Affiliation BDS Course academic year 2020 21. Ref: KUHS communication U.O. No 18534 AC1 Dent A1 2019 KUHS dtd.4th May 2020. It is respectfully submitted that Century Dental College was established in the year 2001 at Poinachi village Kasaragod District. The BDS course with 100 intake per year conducted by the Institution is recognized by the Central Government and renewed every 5 years thereafter as published in the official Gazette of the Ministry of Health &FW. The Institution is affiliated W.A. 155 2021 to KUHS from its inception. During the past 18 years the University conducted yearly inspection and have accorded continuation of affiliation. For the academic year 2020 21 we applied for Continuation of Affiliation for BDS course and a surprise inspection was conducted by the University on 5.12.2020. Vide letter dated 22.01.2020 the University directed the college to submit a compliance report by rectifying the deficiencies pointed out by the scrutiny committee. A Compliance report dated 4.02.2020 was duly submitted to KUHS. Thereafter the University conducted yet another surprise inspection on 5.3.2020 No further communication was received from the University after that regarding deficiency noted by the 2nd Inspection commission Instead we received a letter dated 4.5.2020 rejecting our application for continuation of affiliation without according any venue for explanation or appeal. In the said letter of rejection the deficiency pointed out in the 1st inspection dated 5.12.2019 and a complaint lodged by one Dr. Jayprasad as well as new deficiencies pointed out in 2nd inspection are narrated. Therefore in appeal for reconsideration of our application for continuation of affiliation for the academic year 2020 21 we submit the following point wise explanation compliance on deficiency noted in the rejection letter 1. Deficiency pointed out in 1 inspection report are ● Principal was on leave on the Inspection day without transferring charge to the Vice Principal. Five faculty were on sanctioned leave and four faculty were on unauthorized leave. ● Deficiency of one Reader in the Department of OMFS Dental extraction and RCT were not done as per ● No proper documentation details of attendance University valuation duty & satellite clinic W.A. 155 2021 A compliance report dated 4.2.2020 was duly submitted to KUHS along with copies of leave forms for Faculty on eligible leave Further the deficiency of one Reader in OMFS do not exist as we have one Professorand two Readers Dr Dheeraj Devadiga & Dr.Akshatha) as per DCI norms registered under FEP list and regularly attending KUHS exam duties. Copy of the KUHS letter dated 22.01.2020 and compliance report dated 4.02.2020 submitted by the College are 2. Reference is made to a complaint lodged by one Dr Jayprasad a former disgruntled employee of this Institution alleging that the College is functioning without local Grama Panchayat License and certificate of Pollution control board. The said allegation is totally baseless. Local Grama Panchayat is not an appropriate Authority to issue a License to operate a Dental college in India as per DCI regulation. However the College was registered with the Grama panchayat on 16.09.2010 as per their request. We had obtained an affiliation with IMAGE dated 14.12.2019 for Bio medical waste management and the permission of the Pollution Control Board valid till 2024. Century Hospital functioning in the College Campus had its own incinerator from the time inception for bio medical waste management. The said hospital was taken over by the Government for National Highwayroad widening purpose Copies of registration with local Grama Panchayat dated 16.09.2010 certificate of Affiliation with IMAGE for Bio medical waste management dated 14.12.2019 and the permission of PCB valid till the year 2024 are attached. 3. The new deficiency pointed out in the rejection letter which was not in the 1st inspection report are the following: W.A. 155 2021 a.Of the 6 Medical staff on leave applications for leave of only 3 staff were previously sanctioned by the Principal ii) Among 3 Dental staff reportedly attending valuation duty only Dr. Avinash attended valuation duty at KUHS campus on the inspection day and two others Dr. Ranjith Madhavan& Dr.Anusha(OMR) have not attended valuation duty as per the University Records iii) It was noticed that Dr. Shahanas whose leave application was sanctioned had also signed in the attendance register iv) Dr. Sanjay Bhat Reader had taken a long leave. But no replacement is made so far. b). No satellite clinic was provided by the college. c&d). Students feedback: Inspection team has reported about malpractice in conducting examinations and proper checking are not done before entering examination. e). Hence there is a total shortage of attendance of 10 dental staff and 6 Medical staff on the day of inspection which amount 17% and a shortage of Reader in Dept. of Orthopedics mentioned in 1st Inspection. Compliance: a All 3 Dental staff were on paper valuation duty at KUHS Campus in Thrissur and had attended valuation duties as per KUHS direction. The reference w.r.t Dr. Ranjith Madhavan and Mrs. Dr. Anusha were not present for valuation duty on inspection day is correct. However KUHS valuation duty schedule for both of them was till 4.03.2020. In fact both of them completed their paper valuation work the previous day and started their journey back on 4.03.2020 from KUHS campus in Thrissur to Kasaragod which is about a 12 hour journey. As they were already on sanctioned duty leave from the college to attend university valuation duty they did not attend the college next day 5.3.2020 Inspection day). They have marked their attendance in KUHS attendance register and duty certificates were issued by iii) Dr. Shahnas(Reader) was on sanctioned leave. However he came to the College upon hearing about the surprise inspection. iv). Dr. Sanjay Bhat Readerhad taken a long W.A. 155 2021 leave for personal reasons. He was replaced by promoting Dr Ajeeshato the post of Reader who had completed 4 years of service as per DCI norms. There is no deficiency in the post of Reader. Copy of the Promotion order is attached. b. The college is conducting regular treatment camps at various locations including satellite clinics by the Faculty Students and Interns. The Satellite clinics adopted by the Institution are Smile Dental care Kuttikol Kasaragod 671541 & Smile Dental care Kasaragod 671316. C & d. The information obtained from students regarding malpractice in examination are not substantiated. There are internal squads of senior staffs to check for any devices to prevent malpractice. Students are properly checked before entering the examination hall. In the event of any malpractice by students Internal and External examiners duly report such incidents to the University and strict actions are taken against them as per University direction. During the university examinations held in January & February 2020 no case of malpractice was reported by any observer or by the University appointed squad present at the venue in the college. So the allegations that examination malpractice is happening in the institution is without any basis. e. All Faculty including the Principal are eligible to avail leave as per Norms and there is no shortage of Faculty. All Faculty are regularly attending examination duties assigned by KUHS and all are registered with the University under FEP program. A copy of the Faculty list downloaded from the KUHS website is attached In view of the above we most humbly request to give continuation of affiliation for BDS course with 100 student intakes for the academic year 2020 21 for Century Dental College which is one and only Dental College in the remote District of Yours faithfully Dr. Prashanth The PRINCIPAL” 25. Exhibit P12 order dated 27.11.2020 passed by the 1st respondent on Exhibit P11 appeal dated 20.09.2020 submitted by the appellant is W.A. 155 2021 “No. 18534 2019 Ac 1 Dent A1 KUHS Date: 27 11 2020 Century International Institute of Dental Sciences Poinachi Kasaragod Sub: KUHS Academic Dental Continuation of Provisional Affiliation for the year 2020 21 rejected reconsideration Ref: 1. U.O. No.18534 AC1 Dent A1 2019 KUHS dated 2. Your letter No.CDC KUHS Affiliation 2020 21 dated Attention is invited to the reference cited. I am to inform you that your request to reconsider the decision of the University rejecting the application for Continuation of Provisional Affiliation to your institution to conduct BDS course for the Academic year 2020 21 cannot be considered favourably since the application was rejected based on the grave deficiencies found in your institution during the two inspections conducted in your institution by University related to the grant of Continuation of Provisional Affiliation for 2020 21. Yours faithfully 26. Order dated 15.05.2019 issued by the Kerala University of Health Sciences Academic I Branch as regards implementation of the decision of Governing Council is extracted hereunder “KERALA UNIVERSITY OF HEALTH SCIENCES KUHS Academic non compliance of Council University norms W.A. 155 2021 Conduct of Re inspection modification of existing norms Decision of the Governing Council implemented orders issued ACADEMIC I BRANCH Thrissur Dated. 15.05.2019 No. 6296 AC B KUHS 2013 Read: 1. U. O. No.6296 AC B KUHS 2013 Dated 28.11.2018 2. Decision No.52.41 of the 52nd Governing Council meeting held on 11.04.2018 1. As per the order read 1st above the norms for conducting re inspection and rate of fee to be levied for each re inspection from the colleges who failed to comply the norms fixed by University and Central Councils. 2. While implementing the B point in the order based on the scrutiny reports of inspections conducted at various institutions under different streams certain clarification are required regarding the shortage of Faculties. The Medical Council of India is permitting 10% Faculty deficiency during inspection for Government Medical Colleges and 5% for Private Medical Colleges. For AYUSH colleges 10% deficiency is permissible by CCIM. Where as for Nursing colleges INC is not permitting such relaxations. The Paramedical courses are not controlled by anyApex councils. 3. A proposal for modifying the University orderwhich may be verified during the next years surprise inspections. No re inspection fee may be levied for Those colleges where a re inspection is required due to major deficiencies including IP strength and faculty deficiency above the limit have to remit a re inspection fee of Rs. 20 000 and submit an affidavit from the Principal to the effect that the college has rectified all the deficiencies noted by the inspection team and decision based on the findings of the re inspection conducted by the University to verify this claim shall be final" C) remain unaltered. Other conditions in the University Orderis implemented and orders are issued accordingly. 6. The order read 1" above stands modified to the above 27. Perusal of the order dated 04.05.2020 shows that though the Kerala University of Health Sciences has stated that transfer of charge was not given in the compliance report dated 04.02.2020 it is explained that on the date of inspection the Principal was on casual leave and transferring of authority has been done. Presumably accepting the said explanation in the order of rejection of continued affiliation his absence and not effecting charge have not been mentioned. W.A. 155 2021 28. Out of the 6 Medical staff recorded as absent the appellant college has explained that they were on leave. University while considering the explanation found that for 3 of them leave applications have been sanctioned. For the rest it is for the appellant college to take appropriate decision. Therefore it can be concluded that only 3 of the Medical staff were not present without due authorisation. Absence can be only three 29. As regards the 2nd deficiency out of 3 Dental staff deputed for valuation duty only one has reported for duty and other 2 have not. Judicial notice can be taken that deputation of faculty for valuation duty can be done only when the University directs the respective colleges to depute for such duty. In the case on hand admittedly one Dental staff has attended the valuation duty and the two staff may require to explain to the college as to why they have not attended the duty. Thus all the three Dental staff cannot be said to be absent. At this juncture explanation offered by the appellant college is reproduced “(ii) All 3 Dental staff were on paper valuation duty at KUHS Campus in Thrissur and had attended valuation duties as per KUHS direction. The reference w.r.t Dr. Ranjith Madhavan and Mrs. Dr. Anusha were not present for valuation duty on inspection dayis correct. However KUHS valuation duty schedule for both of them was till 4.03.2020. In fact both of them completed their paper valuation work the previous day and started their journey back on 4.03.2020 from KUHS campus in Thrissur to Kasaragod which is about a 12 hour journey. As they were already on sanctioned duty leave from W.A. 155 2021 the college to attend university valuation duty they did not attend the college next dayUniversity has recorded that though Dr. Shahanas was sanctioned leave he had signed the attendance register for which the appellant college has replied that though he was sanctioned leave on coming to know that there was an inspection Dr. Shahanas had attended duty and accordingly signed the attendance register. 32. As regards the 4th deficiency in the rejection orderthat there was no Reader in the Department of Orthodontics and no substitute has been made appellant college has submitted that Dr. Sanjay Bhat Readerhad taken a long leave for personal reasons he was replaced by promoting Dr. Ajeeshato the post of Reader who had completed 4 years of service as per DCI norms and there is no deficiency in the post of Reader. 33. Perusal of the order of rejection further shows that there is no proper consideration to the explanation offered by the appellant college W.A. 155 2021 Nevertheless even taking it for granted that the said Reader was absent the total number of Medical as well as Dental Staff who can be said to be absent cannot be 16 on the day of inspection out of 92 staff faculty). That apart it is the specific case of the appellant college that out of six Medical staff three staff had obtained prior leave. Appellant college has further stated that they have enclosed the leave applications along with the compliance report. 34. Thus going through the material on record particularly the order of rejection of the application for continuation of provisional affiliation it is evident that the University itself has admitted that leave applications of three Medical staff out of six have been sanctioned. From the above it could be deduced that six staff were not available at the time of inspection and not 16 as concluded by the University out of 92 of the order of rejection is reproduced “e. Hence there is a total shortage of 10 Dental and 6 Medical staff on the day of inspection. This amounts to 16 out of 92 that is around 17%. The shortage of one reader in the Dept of Orthodontics mentioned In the previous Inspection is still not rectified.” 35. Said conclusion of the respondent University is erroneous. 36. As rightly pointed out by the learned Senior Counsel for the appellant college none of the averments in the order impugned in the writ petition relating to the complaints submitted to the Governor of Kerala W.A. 155 2021 Inspection done by the Dental Council of India and the students feedback were part of the deficiencies noticed by the Kerala University of Health Sciences for rectification and that the appellant college was not given an opportunity to substantiate their stand. Therefore the appellant cannot be denied continuation of provisional affiliation on those grounds 37. With respect to the other deficiencies noticed by the respondent University i.e. satellite clinic etc. appellant has stated that the college is conducting regular treatment camps at various locations including satellite clinics by the Faculty Students and Interns and that the Satellite clinic adopted by the institutions are Smile Dentalcare Kuttikol Kasaragod and Smile Dentalcare Periya Kasaragod. 38. It is not disputed that the appellant college is running for 15 years continuously. All the students have been admitted to the examinations periodically. It is not the case of the 1st respondent University that the college has not appointed adequate staff faculty for imparting teaching and practical training to the students and thus not adhered to the norms prescribed by the Dental Council of India. Deficiency noticed is regarding the absence of Medical Dental staff on the inspection day. 39. Attention of this court was also brought to the notice of an office order dated 15.05.2019 wherein continuation of affiliation is permissible subject to the rectification of insufficiency staff faculty upto 5 to 10%. As pointed out in the forgoing paragraphs if 6 staff were absent then the W.A. 155 2021 percentage would be 6 92 i.e. 6.5%. On the basis of the above said order the appellant college is entitled to seek for continuation of affiliation subject to rectification of faculty in the subsequent inspection. 40. Though Mr. P. Sreekumar learned standing counsel for the Kerala University of Health Science respondent No.1 placed reliance on the decision in Kalinga Institute of Medical Science a close scrutiny of the facts and material on record in particular the impugned order prima facie we are of the view that the appellant college has made out a case for interference with the orders impugned in the writ petition and consequently the judgment of the learned single Judge in W.P.(C) No.269220 dated 05.01.2021 41. Accordingly orders dated 4.5.2020 and 27.11.2020issued by the 1st respondent University and the impugned judgment are set aside. Court in normal circumstances would only direct the authorities concerned to reconsider the issue of continued affiliation However considering the totality of the case and in the light of the order dated 15.05.2019 passed by the Kerala University of Health Sciences University we deem it fit to direct the University to grant continued affiliation to the appellant college for the academic year 2020 21 for BDS course. As regards allotment of students by the 3rd respondent allotment procedure be In the result this Writ Appeal is allowed. W.A. 155 2021 Learned counsel for the respondents are directed to communicate this judgment to the respective parties for compliance S. Manikumar Chief Justice Shaji P. Chaly Judge P.A. TO C.J

Summary: The colleges must be provided with an opportunity to vindicate before they are denied provisional affiliation. An affiliation is denied when the college fails to meet basic standards of achievement set by the university. The colleges must be provided with a chance to substantiate their stand while fulfilling the deficiencies during the inspection. This proclamation was made by the Kerala High Court in the case of Principal, Century International Institute of Denstal Sciences vs. Kerala University of Health Sciences and othrs. [W.A. 155/2021] presided by C.J. S. Manikumar and J. Shaji P. Chaly. In the present case, the appellant college was denied affiliation to the Kerala University on the grounds that there were major deficiencies found while inspecting the college. 3 of the Medical staff were not present, without due authorization. Out of 3 Dental staff deputed for valuation duty, only one had reported for duty and other 2 had not. Judicial notice can be taken that deputation of faculty for valuation duty can be done only when the University directs the respective colleges to depute for such duty. The appellant contended, admittedly, one Dental staff has attended the valuation duty and the two staff would have to explain to the college, as to why they did not attend the duty. Thus, all the three Dental staff cannot be said to be absent. Further, the appellant college cannot be held responsible for their absence in not attending the valuation duty. There was no Reader in the Department of Orthodontics and no substitute had been made. Appellant college submitted that current reader had taken a long leave for personal reasons and was replaced by promoting Dr. Ajeesha to the post of Reader, who had completed 4 years of service as per DCI norms; and there is no deficiency in the post of Reader.