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Judgment
Sathish Ninan, J.
Petitioner is an educational agency which runs a Pharmacy College. The writ petition is filed challenging Ext.P8 order rejecting their application for Continuation of Provisional Affiliation, and Ext.P10 notice for withdrawal of affiliation.
The petitioner established a Pharmacy College in the year 2006-07. The College was affiliated to the Kannur University. It had the approval of the Pharmacy Council of India. Since the constitution of the Kerala University of Health Sciences, the college was affiliated to the said University. The affiliation was being extended from year to year. The last extension was for the year 2021-22 as per Ext.P2.
Seeking continuation of the provisional affiliation for the period 2022-23, the petitioner, on 02.09.2021, submitted application for extension/renewal.
On 16.02.2022 an inspection was conducted by the University at the institution. Thereafter, University issued Ext.P4 communication dated 26.04.2022 pointing out certain deficiencies. On complying with the same, the petitioner issued Ext.P6 compliance report with Ext.P5 covering letter. Thereafter on 29.09.2022, in compliance with the e-mail from the University dated 28.09.2022, a hard copy of the compliance report was submitted by the petitioner as per Ext.P7. The petitioner also requested that affiliation for M.Pharm for the year 2022-23 may be kept in abeyance. This was followed by Ext.P8 communication by the University rejecting the application for continuation of affiliation (Ext.P8).
Thereupon, the petitioner, as per Ext.P9, made a request for fresh consideration of renewal, attaching therewith the details of the deficiencies pointed out by the University and also its compliance. Petitioner alleges that, without considering the same the University issued Ext.P10 notice proposing to withdraw/cancel the affiliation granted to the College. The petitioner challenges Exts.P8 and P10, and seeks for a direction for continuation of provisional affiliation for the year 2022-23 for conducting B.Pharm course.
Heard Sri.Kurian George Kannanthanam, the learned Senior Counsel appearing on behalf of the petitioner and Sri.P.Sreekumar, learned Standing Counsel for the first respondent.
Sri.Kurian George Kannanthanam, learned Senior Counsel for the petitioner raises multi-pronged challenge against the rejection of the application for continuation of provisional affiliation and against the proposal to withdraw/cancel the affiliation (Exts.P8 and P10). The grounds urged are :-
(i) Clause 19 of the University First Statutes though provide for submission of application for continuation of affiliation every year, it contemplates inspection by the University only once in two years. Inspection having been conducted in the year 2021 and Ext.P2 affiliation having been issued in the previous year, a further inspection is contemplated only in the year 2023.
(ii) The inspection which led to the rejection of continuation of provisional affiliation is stated to be based on a complaint. Clause-17 of the First Statutes of the University provides for actions of withdrawal/ suspension on such complaints but not an action for refusal to renew the provisional affiliation. The proper procedure is to initiate steps in terms of clause-17 for withdrawal/suspension of such affiliation.
(iii) The enquiry report relied on by the University is vitiated for the reason that, the complainant himself was a member of the inspection committee. The report is thus bad for bias.
(iv) In the compliance report/explanation submitted by the petitioner, it was specifically expressed that they are not seeking for renewal of affiliation for the M.Pharm Course for the year 2022-23. So also, steps taken for compliance with regard to the other deficiencies pointed out in the inspection were also mentioned. However, the same were not taken note of while issuing Exts.P8 order and P10 notice.
(v) The report and the consequential rejection of affiliation being illegal and liable to be set aside, the petitioner is entitled for deemed affiliation for the year 2022-23 in the light of the judgment of this Court in Director, Jubilee Mission Medical College & Research Institute v. University of Calicut and Ors. [2008 (4) KLT 966].
Sri.P.Sreekumar, the learned counsel for the respondent referring to the judgment of the Apex Court in Medical Council of India v. Chairman, S.R.Educational & Charitable Trust [2018 11 JT 62], contended that, this Court is not to sit in appeal over the inspection report of the expert body and that, even the petitioner does not have a case that the deficiencies pointed out by the inspection team did not exist. The University statutes does not prohibit an inspection at any time. The grounds of challenge are without any basis, it was argued.
Clause-19 of Chapter XXI of the Kerala University of Health Sciences First Statutes, 2013 reads thus:-
“19) Continuation of affiliation: In the case of application for continuation of affiliation, the institution has to apply every year in Form 1A of the Appendix within the time notified by the University and shall be subject to all conditions mentioned in the foregoing provisions subject to the following conditions, viz.
i. The institution has complied with all conditions stipulated for affiliation during the preceding year; provided that till the first batch of students in the affiliated course pass out of the institution, an inspection shall be conducted before granting continuation of affiliation every year. In other cases, inspection will normally be necessary only once in two years; but the University, will, however be free to cause an inspection of the affiliated institution at nay point of time if situations warrant the same.
ii. The approval from the apex statutory councils or Government of India, as the case may be, shall be a condition precedent for allowing continuation of affiliation.
iii. For the purpose of granting continuation of affiliation, the inspection committee shall consist of two teachers from the same stream who are qualified to be Examiners and unrelated to the institution or management concerned. In case of difficulty to meet this requirement, the Vice Chancellor may nominate appropriate hands with authority to make such inspection.
iv. The requirement for scrutiny shall be the same as specified for affiliation.”
A reading of 19(i) indicates that, what the statute contemplates is, a mandatory inspection once in two years. However, it does not prohibit an inspection at any time in between. The requirement for mandatory inspection cannot be read to mean that, inspection shall be conducted only once in two years. The learned Senior Counsel would contend that, unless some extraordinary circumstances exists, there is no reason to conduct an inspection within the stipulated period of two years.
The provision is incorporated in the statue to ensure that the institutions possess sufficient infrastructure and faculty. It is in the interests of the students. Existence of extraordinary circumstances is not necessary to conduct an inspection in between, within a period of two years. Placing such an interpretation is against the very purpose for which such provisions are incorporated. Therefore, the fact that more than one inspection was conducted within a period of two years cannot be faulted.
Clause-17 of the Statutes reads thus:-
“17. Withdrawal or suspension of affiliation- The Governing Council, either suo moto, or on complaint, shall have the power, at any time after causing due enquiry, to decide to withdraw or suspend for a definite period the affiliation granted to a college in part or in full, provided that before taking such action the Governing Council shall inform the management of the college concerned of the findings in the enquiry and shall allow it an opportunity of making such representations as it may deem fit and shall record its opinion on the representation thus made.
Provided, that for withdrawal of affiliation on ground of failure to comply with any of the conditions in the agreement entered into with the University and the Government, there will be no need to issue such show cause notice or to conduct any enquiry.”
The fact that Clause-17 of the Statutes provides for a proceeding for withdrawal or suspension of affiliation on a complaint, does not in any manner prohibit the University from considering the inspection report based on such complaint and the report obtained thereon, while considering an application for continuation of affiliation under Clause-19 of the statues. The underlying object behind Clauses-17 and 19, is, as noted above, ensuring the compliance with the requirements regarding faculty and infrastructure by the institution. The fact that on a complaint there could be proceeding for withdrawal of suspension of affiliation, does not prevent the University from taking into consideration the inspection report obtained on such complaint while considering the question of continuation of affiliation under Clause-19 of the statutes.
Now coming to the contention that the inspection and the report are vitiated by bias, Ext.P8 order of rejection of affiliation indicates that, the University received a complaint from a senate member pointing out various deficiencies at the petitioner's institution. The University does not dispute the contention that the said complainant was also part of the inspection team. Under normal circumstances, it could be possible to contend that such inspection report is vitiated by bias. However, on the peculiar facts obtaining in the present case, it could only be found that there is no scope for such a contention. This is for the reason that, a reading of the compliance report would indicate that the petitioner does not dispute the existence of the deficiencies enlisted in the inspection report.
After the filing of the writ petition, the University conducted a further inspection. Therein it was stated that, in spite of the undertaking by the College that M.Pharm course will not be conducted for the academic year 2022-23, the undertaking was violated and six M.Pharm students were admitted. The learned Senior Counsel for the petitioner points out that, the said report is obviously incorrect for the reason that, admissions for M.Pharm for the current year has not even commenced. The learned Senior Counsel is justified in his contention. The learned counsel for the University submits that, it could only be a mistake on the part of the inspection committee. He would further contend that this by itself does not vitiate the entire inspection report, the correctness of which is not otherwise disputed by the petitioner.
A perusal of Exts.P6, P7, P9 compliance reports submitted by the petitioner reveals that, the deficiencies pointed out by the University is rather admitted by the petitioner. In the compliance reports, the petitioner has stated that steps have been taken for curing the defects/deficiencies. Under such circumstances, there is no reason to reject the inspection report and to interfere with the consequential action on the alleged ground of, bias.
Relying upon the judgment of this Court in Director, Jubilee Mission Medical College & Research Institute v. University of Calicut and Ors. (cited supra), the learned Senior Counsel for the petitioner would argue that, the inspection report and the consequential orders being illegal, it is to be deemed that the University has failed to pass any orders on the application for continuation of provisional affiliation, and in terms of the judgment referred to, it has to be taken that there is deemed affiliation for the year 2022-23 for B.Pharm course. I am unable to agree with the said argument for the reason that, the application submitted by the petitioner was duly considered by the University and orders passed. There has been no failure on the part of the University to act upon the application.
Finally, the leaned Senior Counsel would argue that, the explanations/compliance reports submitted by the petitioner were not duly considered by the University. Though it was specifically mentioned that they did not seek for renewal of provisional affiliation for the M.Pharm courses, the consequent reduction in the required faculty and infrastructure etc. have not been taken into consideration by the University. He would further argue that, the Pharmacy Council of India has not yet fixed the last date for completion of admission and hence the University is well within its authority to grant affiliation even at his point of time. Sri.Sreekumar, the learned counsel for the University would submit that, if deficiencies pointed out by the University are complied with, the University would not have any objection in considering their application for renewal afresh.
Since the petitioner has expressed that they are not seeking for renewal of provisional affiliation for the year 2022 for the M.Pharm course, there could possibly be some changes in the faculty and the infrastructural requirements. Since the year 2006, the College was having affiliation for conducting the course. As noticed, as per Ext.P2, the affiliation was renewed even the last year. The infrastructural facilities were found sufficient for all these years including the last year. It is not known how there could occur a deficiency now.
Be that as it may, in the circumstances as noted above, for rectifying of the insufficiency if any, with regard to the infrastructure relating to buildings, halls etc., the petitioner could be granted time till its next application for renewal of provisional affiliation is considered. While considering the issue regarding infrastructure, the university will take due note of the fact that such facilities were found sufficient in the previous years and inspections. As regards the other deficiencies pointed out, including faculty, the petitioner may take steps to cure the deficiencies and intimate the same to the University within ten days from today. On receipt of such intimation, accompanied with the compliance report, if the admissions are not closed by the Pharmacy Council of India, the same shall be considered by the University and appropriate orders passed without delay to enable the petitioner to conduct the course this year, if eligible.
Writ petition is disposed of accordingly.