IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 626 of 2007()
1. UNION OF INDIA, REPRESENTED BY
... Petitioner
2. CENTRAL COUNCIL OF HOMOEOPATHY,
Vs
1. DR. MANJU C.S.,
... Respondent
2. DR. R.ASHA,
3. DR. MRIDULA GOPINATHAN,
4. DR. N.PADMASUGANYA,
5. DR. K.N.JAYANTHI,
6. DR. ASHAMOL K.N.,
7. DR. SINDHU VENUGOPAL,
8. DR. THRUSALA R.I.,
9. DR. NISHA A.N.,
10. DR. ANJU A. JOHN,
11. DR. SREEREKHA S.,
12. DR. SALEENA A.,
13. DR. LAKSHMI PRIYA T.,
14. DR. LIMA H.L.,
15. DR. LALI I.S.,
16. DR. SAJEEV V.,
17. DR. SHOPHY R. DAS,
18. DR. SMITHA K. MOHAN,
19. DR. PRADEEP KUMAR,
20. DR. ARIHARAN S.,
21. STATE OF KERALA, REPRESENTED BY
22. UNIVERSITY OF KERALA,
23. THE PRINCIPAL AND CONTROLLING OFFICER,
For Petitioner :SRI.AJITH KRISHNAN (CGSC)
For Respondent :SRI.NAVEEN.T.
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :09/03/2010
O R D E R
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