IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10056 of 2007(V)
1. KERALA CO-OPERATIVE HOSPITAL FEDERATION
... Petitioner
Vs
1. KANNUR UNIVERSITY,
... Respondent
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.M.SASEENDRAN,SC,KANNUR UNIVERSITY
The Hon'ble MR. Justice V.GIRI
Dated :05/11/2008
O R D E R
V.GIRI, J.
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W.P.(C).No.10056 of 2007
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Dated this the 5th day of November, 2008.
JUDGMENT
The petitioner is an association of Co-operative
Hospitals in the State. It is running a Co-operative
Hospital at Thalassery. Till 2001, the College of Nursing
being conducted in the said Co-operative Hospital was
affiliated to the Calicut University. It seems that the
Calicut University felt that it cannot continue to let an
institution being run within the limits of another University
viz., Kannur University, being affiliated to the Calicut
University. Therefore, the affiliation by the Calicut
University was stopped.
2. The petitioner entered into an understanding
as evidenced by Ext.P1 Memorandum of Understanding,
whereby it agreed to conduct B.Sc. Nursing and Bachelor
Physiotherapy Course with a strength of 60 students each
in collaboration with the first party. The terms and
conditions in relation to such collaboration are contained in
Ext.P1 Memorandum of Understanding. The College of
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Nursing is, therefore, being conducted at Nettoor in
Thalassery and the said institution was being run in terms
of Ext.P1. The Indian Nursing Council, a competent body
under the Indian Council Act, 1947 has, by Ext.P2 dated
18.10.2006, certified that the course conducted by the
institution is an approved course of study for admission to
an approved examination for the said course. By Ext.P3
order, the Government issued an No Objection Certificate
to the petitioner, Kerala Co-operative Hospital Federation
to conduct B.Sc. Nursing College at Thalassery with an
intake of 50 students with the recognition of the Kannur
University. Exts.P4 and P5 applications were made by the
petitioners for affiliation in relation to B.Sc. Nursing Course
and the Bachelor of Physiotherapy course on 30.12.2005.
The extent of the land available with the institution for
which affiliation was sought for, as shown in Ext.P5 is
151.5 cents. It now turns out, that the property covered
by Exts.R1(a) and R1(b) is situated in Thalassery. It
seems that during the currency of the said applications, the
petitioner acquired an additional extent of 296.93 cents, as
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part of the same is in Mannayad, Thalassery and part in
Andaloor in Dharmadom. The details fo the same are
given in Ext.P6. Ext.P7 reminder was sent by the
petitioner. But by Exts.P8 and P9, the petitioner was
informed that the applications for starting new colleges for
the academic year 2006-07 were recommended by the
Syndicate as there was no sufficient extent of land in the
possession of the petitioner. Permission was, therefore,
granted to submit fresh applications during the academic
year 2007-08 with all documents on or before 31.12.2006.
I note that Exts.P8 and P9 were issued on 20.12.2006.
3. Exts.P8 and P9 were challenged in the writ
petition as it was originally instituted. Thereafter, Exts.P10
and P11 were issued by the University granting permission
to submit applications after paying a fresh registration fee
of Rs.20,000/- and a late fee of Rs.5,000/-. Exts.P8, P9,
P10 and P11 are challenged in the writ petition.
4. This court passed an interim order on
3.4.2007 to the following effect:
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“There would be an interim direction to consider the
application of the petitioner for affiliation of courses applied
without insisting on payment of fee of Rs.25,000/- each
again, since he had already paid earlier the fees.”
5. Another interim order was passed on
17.08.2007.
“In view of Ext.P13 being available, there is
apparently no reason to refer the case of the petitioner to the
Government for its view as has been done by the University,
as evidenced by Ext.P2. Hence, it is directed that the
Syndicate of the University will take up Exts.P4 and P5
applications and consider the same on the basis that the
Government has stated its no objection in Ext.P13
Government Order. Let a final decision be taken as
aforesaid within an outer limit of three weeks from now and
place before this court.”
6. Thereupon, the University considered the
application for affiliation on merits and passed Ext.P14
order declining to grant affiliation, for the following
reasons:
“1. The land requirement as per the University rules is
not met by the educational agency.
2. The courses now being conducted are that of the
University as per Memorandum of Undertaking and
this does not constitute the affiliation of
college/course.”
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Ext.P14 has been challenged in the amended writ petition.
7. A counter affidavit has been filed by the
University supporting Ext.P14. The petitioner has filed a
reply affidavit.
8. I heard learned counsel for the petitioner
Sri.Mohammed Nias and the learned standing counsel for
the Kannur University.
9. Learned counsel for the petitioner submits
that the reasons given in Ext.P14 are not tenable. The first
reason given in Ext.P14 is that the extent of the land in the
possession of the petitioner is not sufficient to start the
Nursing College. It is contended that it is not open to the
University to cite the alleged inadequacy of the extent of
the land as the reason for declining affiliation. Reference is
made, in this regard, to the Regulations issued by the
Indian Council of Nursing, which governs the action taken
by the competent body of the Indian Council in dealing
with the application for approval of a course being
conducted by any institution and comprehended by the
Indian Nursing Council Act. It is contended that the extent
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of land is one of the aspects taken note of by the Central
Government and if therefore, the Indian Nursing Council,
as is evident by Ext.P2, granted the requisite approval,
then those parameters which fell for consideration by the
Indian Nursing Council cannot again be considered by the
University while dealing with an application for affiliation.
Reference in this regard is made to the law laid down by
the Full Bench in Vikram Sarabhai Educational Trust
and B.Ed College v. University of Calicut and another
{2008(2)KHC 647}.
10. It is further pointed out that, at any rate, the
suitable land required for the conduct of an institution
offering B.Sc Nursing course is only 3 acres and since the
petitioner had acquied an additional 2.96 acres, over and
above the 3 acres, even the requirement insofar as the
extent of land is concerned, was satisfied by the petitioner.
The fact that the land subsequently acquired is not
adjacent to the existing land is not a matter of concern,
contends the learned counsel for the petitioner. There is
no such requirement spelt out either by the Indian Nursing
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Council Act or for that matter, the University Act or the
University First Statute.
11. Insofar as the second aspect mentioned in
Ext.P14 is concerned, it is pointed out that the facilities
available with the petitioner including the facilities available
for the hospital have been found to be adequate and
satisfactory by the Kannur University, when it entered into
the Memorandum of Undertaking referred to in Ext.P5. If
that be so, it is open to the petitioner to seek an affiliation
on its own. Ext.P1 Memorandum of Undertaking will not
derogate from the right of the owner of the land where a
hospital has been established and the institution which
runs a hospital as such, where the courses are being
offered, it is contended.
12. I find force in the submission made by the
learned counsel for the petitioner. The major objection
taken to deny affiliation, as is discernible from Ext.P14, and
the extremely unsatisfactory counter affidavit filed by the
University is that the extent of the land is not sufficient. I
take note of the fact that firstly the Nursing Council did not
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consider whether the extent of land available with the
petitioner is either inadequate or insufficient to run the
institution. If the Nursing Council, the competent authority
under the Central Indian Nursing Council Act, considers the
extent of the land available with the petitioner as
adequate, to enable it to run the course B.Sc Nursing, then
the self-same matters cannot be taken note of by the
Kannur University to deny affiliation, unless it is a case
where the order of approval granted by the Central Body is
found to be vitiated by fraud or having been obtained by
fraudulent means or it is a case where the particulars
noted by the Central Body is palpably erroneous as to
make the order vitiated by a fraudulent exercise of power.
It is not open to the University, which is called upon to
grant affiliation, to deny affiliation for a reason, which
otherwise must be deemed to have been taken note of and
found to be satisfactory by the Central Body. This is the
law that has been laid down by the Supreme Court and this
court, on several occasions and the law has been reiterated
by the Full Bench of this court in Vikram Sarabhai
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Educational Trust and B.Ed College v. University of
Calicut and another {2008(2)KHC 647}. It is not a
case where Ext.P3 order of approval issued by the Indian
Nursing Council is vitiated by fraud or that it has been
obtained by fraudulent means. I also take note of Ext.P3
No Objection Certificate issued by the Government and I
find that there is no reason to disbelieve that the
Government must have looked into all these aspects before
it issued Ext.P3 No Objection Certificate.
13. Insofar as the second aspect is concerned,
apart from the cryptic reasons stated in Ext.P14, I do not
find any specific reference to this aspect in the counter
affidavit. I consider it appropriate to hold any such
objection has been given up by the University or not
seriously pursued. At any rate, the fact that the facilities
available with the petitioner were considered to be
sufficient by the Calicut University in the first instance for
running the B.Sc Nursing course and thereafter by the
respondent University from the year 2005 is noteworthy.
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For all these reasons, I am of the view that
Ext.P14 is unsustainable. The writ petition is allowed.
Ext.P14 is set aside. It is declared that the petitioner is
entitled to get affiliation from Kannur University, to enable
it to offer courses in B.Sc Nursing and Bachelor of
Physiotherapy. Consequential orders shall be passed by
the Kannur University within six weeks from the date of
receipt of a copy of this judgment.
Sd/-
(V.GIRI)
JUDGE
sk/
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