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2022 Supreme(Online)(KER) 61906
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
WP(C) NO. 26442 OF 2020
PETITIONER/S:
1
ST.JOSEPH HOSPITAL
DHARMAGIRI, KOTHAMANGALAM P O, ERNAKULAM-686691, REPRESENTED BY ITS
ADMINISTRATOR SR..ABHAYA.
2
SR. ABHAYA
AGED 45 YEARS
D/O P V JOSEPH,
MEMBER, CONGREGATION OF MEDICAL SISTERS OF ST.JOSEPH (MSJ), ST.
JOSEPH HOSPITAL, DHARMAGIRI, KOTHAMANGALAM P O, ERNAKULAM-686691.
BY ADVS.
BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SHRI.P.U.VINOD KUMAR
SMT.ARYA RAGHUNATH
SMT.VAISAKHI V.
SRI.T.M.MUHAMMED MUSTHAQ
SHRI.UNAIS K.P.
RESPONDENT/S:
1
STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY T THE GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, 6TH FLOOR, ANNEX-II,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2
DIRECTOR OF MEDICAL EDUCATION
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P O,
THIRUVANANTHAPURAM-695011.
3
THE SECRETARY
PARA MEDICAL COUNCIL, HEALTH AND FAMILY WELFARE DEPARTMENT, SOUTH
BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
4
THE DISTRICT INSPECITON TEAM CONSTITUTED BY THE STATE
WITH RESPECT TO PARA MEDICAL INSTITUTIONS, REPRESENTED BY THE
DISTRICT MEDICAL OFFICER (HEALTH),
PARK AVENUE,
MARINE DRIVE, ERNAKULAM,
KERALA-682011.
BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
SR GP SRI K R RENJITH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 26442 OF 2020
2
The Government cannot reject an application for an essentiality certificate without conducting an inspection, particularly when the committee has recommended establishing the institution in the petitioner's district.
Headnote:
ESSENTIALITY CERTIFICATE - MEDICAL LABORATORY TECHNOLOGY COURSE - [KEYWORD] - This writ petition challenges the Government's rejection of the petitioner's essentiality certificate for running a Bachelor of Science in Medical Laboratory Technology course. The court held that the Government erred in rejecting the application without conducting an inspection, particularly when the committee had recommended establishing the institution in the petitioner's district. The court quashed the impugned order and directed the Government to revisit the issue and pass an order after receiving an inspection report from the committee.
Fact of the Case:
The petitioner, a medical institution, applied for an essentiality certificate to run a Bachelor of Science in Medical Laboratory Technology course. The application was initially rejected, but the court directed the Government to reconsider the application. The Government constituted a committee to study the essentiality of the course, and the committee recommended establishing the institution in the petitioner's district. However, the Government rejected the application without conducting an inspection.
Finding of the Court:
The court held that the Government erred in rejecting the application without conducting an inspection, particularly when the committee had recommended establishing the institution in the petitioner's district. The court quashed the impugned order and directed the Government to revisit the issue and pass an order after receiving an inspection report from the committee.
Issues: Whether the Government erred in rejecting the application without conducting an inspection?
Ratio Decidendi: The court held that the Government erred in rejecting the application without conducting an inspection, particularly when the committee had recommended establishing the institution in the petitioner's district.
Final Decision: The court quashed the impugned order and directed the Government to revisit the issue and pass an order after receiving an inspection report from the committee.
JUDGMENT
Ext.P10 dated 19.10.2020, order of the Government rejecting the essentiality certificate to the petitioner for running a Bachelor of Science in Medical Laboratory Technology has been challenged in the present writ petition. This is the third round of litigation where earlier direction was issued as no action was taken on the application for carrying on the course and resulted into an order rejecting the permission which was set aside vide judgment dated 9.1.2020, Ext.P6, resulting into a constitution of a committee, recommendation and rejection as per the impugned order.
2. First petitioner is a medical institution situated in the eastern part of Ernakulam District, almost on the border of Idukki which is a 300 bedded charitable hospital having 22 departments including Departments of General Medicine, General Surgery, Obstetrics and Gynecology etc with sufficient staffs equated to aforementioned needs. The aforementioned hospital is situated in a rural area where there are about 12 Higher Secondary and 5 Vocational Higher Secondary Schools in the area but no Para Medical or Allied Institutions in the locality. Many parents and students, especially from High Ranges also feel lack of sufficient high standard colleges in the locality creating skilled professionals to provide important Para Medical Services wherein, the students can join for Paramedical Courses which is highly job oriented. Petitioner Hospital submitted an application dated 22.1.2019, Ext.P1 to the Additional Chief Secretary of the Government, Department of Health and Family Welfare/Respondent No.1. On the basis of the directions given by this Court, the application was rejected vide order Ext.P5, resulting into filing of a writ petition as stated above.
3. Learned counsel appearing for the petitioner submits that as per the directions of this Court, the Government was directed to revisit the issue and decide matter afresh but vide order dated 10.7.2020, Ext.P8 constituted a five member committee consisting of Director of Medical Education, Joint Director of Medical Education (Medical), Joint Director of Medical Education (General), Dean Faculty of Allied Health Sciences and Professor of School of Health Policy and Planning, Kerala University of Health Sciences to study the essentiality with respect to various allied health science courses. The Committee after having undertaking the task, submitted a report dated 14.10.2020 to the Principal Secretary to Government, Health and Family Welfare Department, Ext.P9 and as per the report it was found that around 900 seats in
30 institutions, required to be increased and allotted additional 10 seats whereas additional 5 institutions in the District where there is no such course as sought to be started by the petitioner and thus can be permitted in the following districts; a) Idukki b) Wayanadu c) Kasargod and d) Pathanamthitta and 100 seats can be increased as there is a demand. But for granting the essentiality a detailed application and inspection is required to be conducted.
4. Government on the basis of the aforementioned report, vide impugned order rejected the same. Learned counsel appearing for the petitioner further in support of the grounds raised the following submissions:
5. Right to education is a fundamental right and cannot be whittled away by fettering hands of the institutions, who are willing to start the aforementioned courses to cater to the students, who are willing to undertake the paramedical courses, the course the one which institution wants to introduce as it is located 10 km away from the Idukki District. In such circumstances, inspection would have been sine qua non and germane for considering the application of the petitioner.
6. Government in undue haste, without examining the report in detail as an eyewash just to overcome the wrath of the contempt petition rejected the application.
7. On receipt of the report, it was incumbent upon the Government to direct the committee to conduct the ins
