IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
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)]
APPELLANT/PETITIONER:
THE PRINCIPALCENTURY INTERNATIONAL INSTITUTE OF DENTAL SCIENCE AND RESEARCHCENTRE, POINACHI, KASARAGODE-671 541.
BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SRI.THOMAS GEORGE SRI.ALEX GEORGE SRI.EBEE ANTONY KANNANTHANAM
RESPONDENTS/RESPONDENTS:
1 KERALA UNIVERSITY OF HEALTH SCIENCESREPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O,TRICHUR-680 596.
2 THE STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.
3 THE COMMISSIONER FOR ENTRANCE EXAMINATION,TRIVANDRUM -695 001.
R1 BY DV. SRI. P. SREEKUMAR, SC R2 & R3 BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2021, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. 155/2021 2
JUDGMENTS. Manikumar, CJ
This intra court appeal is filed against the judgment dated 05.01.2021
in W.P.(C) No.26923 of 2020, 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
dismissed.”
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 Permission (LOP) issued by the
W.A. 155/2021 3
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 (Exhibit-P3) 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 4
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 Friendly (IMAGE), and 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 (Exhibit-P7). Yet, the respondent University conducted an
inspection and pointed out certain deficiencies, as evident from Exhibit-P8
letter dated 22.01.2020. After a lot of correspondences between the
appellant and the respondent University on the issue, the University
ultimately, by Exhibit-P10 order dated 04.05.2020, rejected the application for
renewal of affiliation. Aggrieved by the said order, an appeal before the Vice
Chancellor was filed. However, the appeal has also been rejected.
Challenging the rejection of continuation of affiliation, Writ Petition was filed
for the following prayers:
i. Issue a writ of certiorari or other appropriate order or direction to
quash Exhibits-P10 and P12 orders dated 04.05.2020 and
27.11.2020 respectively issued by the 1st respondent University.
ii. To declare that the petitioner is entitled to have admissions
made in the College for 2020-21.
iii. In the alternative, mandamus to direct the University to issue
continuation for affiliation for B.D.S. Course in 2020-21.
W.A. 155/2021 5
iv. To issue a writ of mandamus or other appropriate order, or
direction, to direct the Commissioner for Entrance exams to
include the petitioner's College for Centralized Allotment and
to allot students to the College in 2020 itself.
8. Before the writ court, learned standing counsel for Kerala University
of Health Sciences, respondent No.1, has filed a statement, and the same
reads thus:
A) The petitioner has filed the writ petition challenging the
decision taken by the University to reject the application for
continuation of affiliation for the academic year 2020-21 in
dental courses. The statement is filed without prejudice to the
rights of the respondent to file a detailed counter affidavit if
found necessary at a later stage.
B) The grievance raised by the petitioner in the writ is in relation
to Exhibit P10 order dated 04.05.2020 passed by the
respondent University. Exhibit P10 order is legally sustainable
and there is no error in the same. The reasons shown in
exhibit P10 for rejecting the application for the continuation of
affiliation are substantial and justifiable.
C) It is respectfully submitted that being the affiliating and
examining body, the University is duty bound to see that the
institutions imparting training in the field of Health Sciences
maintain the minimum required standard, so as to provide
proper training to the students. Once it is found that the
institution is not maintaining the standards, the University is
bound to take appropriate actions and the same include the
rejection of the application for continuing the affiliation.
D) It is further submitted that the University conducts inspection
W.A. 155/2021 6
through its inspectors in the institution to assess the facilities
available in the institutions and take a decision regarding
affiliation on the basis of the scrutiny of the reports. In the
case of the petitioner, an inspection was conducted on
05.12.2019 and the defects noted were intimated to the
College. Thereafter, a verification was done on 5.3.2020
through another inspection. It was based on the findings of the
said inspections and the scrutiny of the reports received, that
the University took the decision to reject the application and
issued Exhibit-P10. Though notice was issued to the petitioner
regarding the deficiencies, no earnest effort was taken to
rectify the same apart from submitting Exhibit P9 compliance
report dated 04.02.2020 with annexures. It is settled law that
compliance of the conditions on paper alone is not sufficient to
consider the application. The petitioner has not raised any
serious objections to the findings in the report but contends
that the University is not competent to decide on the question
of affiliation.
E) It is further submitted that the Hon'ble Apex Court in several
judgments held that recognition and affiliation are distinct and
different. The recognition is granted by the statutory council or
the respective government, whereas grant of affiliation is
within the competence of the examining body. It is also the
settled proposition of law that affiliation is not automatic or that
the University is expected to sign the dotted lines only for the
reason that the institution has got recognition or permission
from the statutory council.
F) It is further submitted that in the case of dental courses, the
Apex body is the Dental Council of India. The regulations
issued by the Dental Council or the Central Government are
by exercising the powers under Entry 66 of List I, of the 7 th
W.A. 155/2021 7
Schedule of the Constitution of India, whereas the University
is a creation of the state under entry 25 of list III. Considering
this, the area of operation of the regulations of the DCI and
that of the University is different. There is no conflict or
repugnancy in the regulations of the DCI and that of the
University. Repugnancy could be found only when the
provisions in the different enactments are irreconcilable and
the operation of the one would render the other inoperative.
The courts should attempt to reconcile both the provisions
while considering the issue of repugnancy.
G) The petitioner has not stated in the writ petition how the
University norms is in conflict with DCI norms and renders the
same unworkable. It is a primary requisite in a writ of the
present nature to plead and show the repugnancy. Without a
finding on repugnancy, it is not possible to discard the
authority of the University to grant affiliation. There is also no
challenge against any of the provisions in the University Act or
the statutes, which prescribe the method to be adopted in
dealing with the matter of affiliation.
H) Contention of the petitioner that University is not competent to
grant continuation of affiliation is ironic since it is not disputed
that the authority to grant affiliation is the University. It is also
not the case of the petitioner that the affiliation granted by the
University is permanent. The affiliation granted by the
University to the petitioner is provisional and for a particular
period, and the same is to be extended on the expiry of the
period. For the grant of extension of such provisional
affiliation, the University adopted the same norms, which are
applied for the grant of affiliation. It is also to be noted that
though the word used is “continuation of affiliation”, the same
is granted on the basis of a fresh application.
W.A. 155/2021 8
I) In the case of the petitioner, University has found several
deficiencies and they were not rectified by the petitioner.
Inspections were conducted by the experts in the field and
their findings could not be set aside in a writ petition. While
exercising the powers in a writ petition this court is not
functioning as an appellate authority. For the foregoing
reasons, the respondent University has prayed for dismissal of
the writ petition.
9. After considering the pleadings, submissions, material on record,
and taking note of the decisions cited therein, writ court dismissed the writ
petition by the impugned judgment, extracted above. Being aggrieved, the
appellant/writ petitioner has come up with this appeal, raising the following
contentions:
A. The University had never given the appellant or anybody
related to the College any notice about the deficiencies noted
in the impugned order or the report of the DCI. If the University
had any intention of taking any action against the College in
the realm of affiliation, the College should have definitely been
put to notice and their explanation ought to have been sought
for. Nothing of that sort was done by the University.
B. The basic question that remains to be considered is regarding
the scope and power of the University in the matter of grant of
continuation of affiliation. In the case of Medical and Dental
Colleges, the Central Government has to issue Letter of
Permission (LO) to admit students every year, till the College
gets recognition. Once the College is recognized, no further
LOP is required.
W.A. 155/2021 9
C. There is no power vested with the University to issue LOP (by
whatever name called) from 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.
D. 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
First Statutes.
W.A. 155/2021 10
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 reply (compliance report) dated 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 11
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 India (DCI), and 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 12
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 4.5.2020 (Exhibit-P10), 1st 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 13
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 (2016) 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.
20. Heard the learned counsel for the respective parties and perused
the material available on record.
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 14
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
From
The Registrar
ToThe PrincipalCentury International Institute of Dental Sciences &Research, Kasaragod.
Sir,
Sub: KUHS - Academic-Dental-Continuation of ProvisionalAffiliation for the year 2020-21 - Inspection report - Deficienciespointed 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
following deficiencies:
1. The Principal was on leave on the day of inspection, withouttransferring 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 RCTwere 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 15
Affiliation you are requested to submit a compliance report rectifying
the above deficiencies 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.
Yours faithfully,
REGISTRARApproved for Issue
Section Officer”
22. Exhibit-P9 is the compliance report dated 04.02.2020 with
annexures and the same is reproduced hereunder:
“CDC-KUHS/Affiliation/2020/01 Dated:04/02/2020
To
The RegistrarKerala University of Health SciencesThrissur-680596.
Respected Sir,
Sub: KUHS-Academic-Dental 7 Continuation of ProvisionalAffiliation 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 dated22.01.2020.
We acknowledge the receipt of your letter No.
18534/2019/AC-1/Dent/A1/KUHS dated on 22/01/2020 by post on
03/02/2020.
We refer to the letter under reference and respectfully submit
the compliance report.
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 16
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 hegede (Professor)
2. Dr. Dheeraj (reader)
3. Dr. Akshatha(reader)
All these staffs are enrolled in the faculty enrollment
programme (FEP) 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 RCwere 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 17
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,
PRINCIPAL”
23. Exhibit-P10 order dated 4.5.2020 passed by the 1st respondent is
extracted hereunder:
“KERALA UNIVERSITY OF HEALTH SCIENCES
ABSTRACT
KUHS- Academic - Continuation of provisional affiliation for theacademic year 2020-21- Century International Institute of DentalSciences and Research Centre, Kasaragode- rejected - ordersissued. -------------------------------------------------------------------------------------
W.A. 155/2021 18
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
ORDER
University, vide paper read (1) above 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 read (2) above, 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 (3) above, has submitted the
inspection report. The Scrutiny Committee, vide paper read (4)
above, after verifying the inspection report has pointed out the
following deficiencies at the college recommended for conducting
re-inspection.
i. The Principal was on leave on the day of inspection withouttransferring charge to Vice Principal.
ii. Five faculty were on leave on the day of inspection.
iii. Four faculty were unauthorized absent.
iv. Deficiency of one reader in the department of OMFS.
v. The Clinical Requirements like Dental extractions and RootCanal Treatment were not done according to the KUHSrequirement.
W.A. 155/2021 19
vi. No proper documentation of details of attendance, valuationduty and satellite clinic.
2. The above deficiencies were intimated to the college
directing to rectify the deficiencies and submit the compliance
report. Meanwhile, a letter was received from the Principal
Secretary to the Governor seeking report on the complaint
received against Century international institute of Dental
Sciences, Kasaragod. The complainant ,Dr. Jayaprasad K., on
the basis of the RTI reply from the Chemmenad Grama
Panchayath and pollution control board claims that the institution
is running without the permission and license from the
Chemmenad Grama Panchayath and pollution control board for
the past 15 years. Considering the complaint the College was
directed to produce the relevant documents at the earliest.. The
Kerala Dental Council had conducted an inspection based on the
complaint received in their office from internees. The report was
forwarded to University for taking further action. On scrutinizing
the inspection report it was found that the complaints raised by
the internees were genuine since there were gross irregularities
in the main attendance register of Internees, some persons
signed for others, some internees signed but were not present.
There was no logbook. The college had submitted a compliance
report regarding the intimated deficiencies. Considering the
documents proving the bio-medical waste management facility
and application to Kerala state Pollution Control Board, and the
report forwarded by Kerala Dental Council, the Scrutiny
Committee recommended to conduct a surprise inspection. On
receipt of the compliance report, the University has appointed an
inspection commission to verify the genuineness of the
compliance report. The inspection commission, vide paper read
(5) above, has submitted the inspection report. The Scrutiny
Committee, vide paper read (6) above, after verifying the
W.A. 155/2021 20
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
absent (on long leave). On scrutinizing the submitted supporting
documents it is noted that:
i. Of the 6 Medical staff on leave, the leave application of only 3were sanctioned by the Principal.
ii. Among the 3 Dental staff on valuation duty (as reported by thecollege), only 1 person Dr. Avinash, Dept. of Orthodontics hadattended valuation duty at KUHS on 05.03.2020. The other 2persons Dr. Ranjith Madavan (Periodontics) and Dr. Anusha(Oral Medicine & Radiology) had not attended valuation duty onthe day of Inspection as per university records.
iii. It was also noticed that one of the staff Dr. Shahanas(Conservative Dentistry) whose sanctioned leave applicationsubmitted had signed in the attendance sheet.
iv. Dr. Sajay Bhat Reader in the Dept of Orthodontics was notpresent on the day of previous inspection as well as on the day ofcurrent inspection. It was reported by the college that he is onlong leave. But no substitute has been arranged so far.
b. Satellite Clinics
No satellite clinic facilities are provided by the college which isagainst the norms of KUHS as well as that of DCI. This deficiencywas pointed out during the previous inspection also.
c. Student Feedback:
d. On interaction with students, the Inspection team has reportedthat there are malpractices in the conduct of universityexaminations. They also mentioned that proper checking ofstudents before entering the examination hall is not done.Besides they have complained that the stipend given to theInterns is not as per KUHS norms.
e. Hence, there is a total shortage of 10 Dental and 6 Medicalstaff on the day of inspection. This amounts to 16 out of 92 that isaround 17%. The shortage of one reader in the Dept ofOrthodontics mentioned In the previous Inspection is still notrectified.
W.A. 155/2021 21
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 read (7) above,
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 read (7) above
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.
RegistrarTo
The Principal, Century International Institute of Dental Sciencesand 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 22
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, withouttransferring charge to the Vice Principal.
● Five faculty were on sanctioned leave and four faculty wereon unauthorized leave.
● Deficiency of one Reader in the Department of OMFS.Dental extraction and RCT were not done as perrequirement.
● No proper documentation details of attendance, Universityvaluation duty & satellite clinic
W.A. 155/2021 23
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 Professor (Dr Prasanth Hedge) and 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
attached.
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 Highway (NH) road 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 24
a. (I) Of the 6 Medical staff on leave, applications for leave of only3 staff were previously sanctioned by the Principal.
(ii) Among 3 Dental staff reportedly attending valuation duty, onlyDr. Avinash (orthodontics) attended valuation duty at KUHScampus on the inspection day and two others Dr. RanjithMadhavan (Periodontics) & Dr.Anusha(OMR) have not attendedvaluation duty as per the University Records.
(iii) It was noticed that Dr. Shahanas, whose leave applicationwas sanctioned, had also signed in the attendance register.
(iv) Dr. Sanjay Bhat, Reader (Orthodontics), had taken a longleave. But no replacement is made so far.
(b). No satellite clinic was provided by the college.
(c&d). Students feedback: Inspection team has reported aboutmalpractice in conducting examinations and proper checking arenot done before entering examination.
(e). Hence, there is a total shortage of attendance of 10 dentalstaff and 6 Medical staff on the day of inspection which amount17% (16 out of 92) and a shortage of Reader in Dept. ofOrthopedics mentioned in 1st Inspection.
Compliance: - a (i). Out of the 6 medical staffs3 staff hadobtained prior leave sanction and 3 were on camp duty & casualleave on the inspection day. All of them were on eligible leave asper norms. Copies of leave forms submitted to the inspectors areattached herewith.
(ii) All 3 Dental staff were on paper valuation duty at KUHSCampus in Thrissur and had attended valuation duties as perKUHS direction. The reference w.r.t Dr. Ranjith Madhavan andMrs. Dr. Anusha were not present for valuation duty on inspectionday (5.3.2020) is correct. However, KUHS valuation dutyschedule for both of them was till 4.03.2020. In fact both of themcompleted their paper valuation work the previous day andstarted their journey back on 4.03.2020 from KUHS campus inThrissur to Kasaragod which is about a 12-hour journey. As theywere already on sanctioned duty leave from the college to attenduniversity valuation duty, they did not attend the college next day(5.3.2020- Inspection day). They have marked their attendance inKUHS attendance register and duty certificates were issued byKUHS.
(iii) Dr. Shahnas(Reader), was on sanctioned leave. However, hecame to the College upon hearing about the surprise inspection.
(iv). Dr. Sanjay Bhat, Reader (Orthodontics), had taken a long
W.A. 155/2021 25
leave for personal reasons. He was replaced by promoting Dr.Ajeesha (Orthodontics) to the post of Reader, who had completed4 years of service as per DCI norms. There is no deficiency in thepost of Reader. Copy of the Promotion order is attached.
b. The college is conducting regular treatment camps at variouslocations including satellite clinics by the Faculty, Students andInterns. The Satellite clinics adopted by the Institution are, SmileDental-care, Kuttikol, Kasaragod-671541 & Smile Dental-care,Kasaragod-671316.
C & d. The information obtained from students regardingmalpractice in examination -are not substantiated. There areinternal squads of senior staffs to check for any devices toprevent malpractice. Students are properly checked beforeentering the examination hall. In the event of any malpractice bystudents, Internal and External examiners duly report suchincidents to the University and strict actions are taken againstthem as per University direction. During the universityexaminations held in January & February, 2020, no case ofmalpractice was reported by any observer or by the Universityappointed squad present at the venue in the college. So, theallegations that examination malpractice is happening in theinstitution is without any basis.
e. All Faculty including the Principal are eligible to avail leave asper Norms and there is no shortage of Faculty. All Faculty are.regularly attending examination duties assigned by KUHS and allare registered with the University under FEP program. A copy ofthe Faculty list downloaded from the KUHS website is attachedherewith.
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
Kasaragod.
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 26
reproduced hereunder:
“No. 18534/2019/Ac-1/Dent/A1/KUHS Date: 27-11-2020
From
The Registrar
To
The PrincipalCentury International Institute of Dental Sciences,Poinachi, Kasaragod.
Sir,
Sub:- KUHS-Academic-Dental-Continuation of ProvisionalAffiliation for the year 2020-21 rejected-reconsideration-requested-reg.
Ref:- 1. U.O. No.18534/AC1/Dent/A1/2019/KUHS dated04.05.2020.
2. Your letter No.CDC-KUHS/Affiliation/2020-21 dated20.09.2020.
Attention is invited to the reference cited. I am to inform youthat your request to reconsider the decision of the Universityrejecting the application for Continuation of Provisional Affiliationto your institution to conduct BDS course (100 seats) for theAcademic year 2020-21 cannot be considered favourably sincethe application was rejected based on the grave deficienciesfound in your institution during the two inspections conducted inyour institution by University related to the grant of Continuationof Provisional Affiliation for 2020-21.
Yours faithfully,
Registrar.”
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 Abstract
KUHS- Academic- non compliance of Council/University norms-
W.A. 155/2021 27
Conduct of Re-inspection - modification of existing norms -Decision of the Governing Council-implemented - orders issued.-------------------------------------------------------------------------------------
ACADEMIC I BRANCH
No. 6296/AC-B/KUHS/2013 Thrissur, Dated. 15.05.2019 -------------------------------------------------------------------------------------
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.
ORDER
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 order ( Point -B)
was placed before the 52nd Governing Council meeting held on
11.04.2019. After detailed discussions the Governing Council has
approved in Principle the proposal to modify the clause B in the
order read 1°' above, as mentioned below:-
"Continuation of affiliation may be granted to colleges
subject to rectification of Faculty deficiency (upto 5% to 10%
as given by apex councils wherever applicable and 5% for
courses having no statutory council stipulations to
W.A. 155/2021 28
this effect) which may be verified during the next years
surprise inspections. No re-inspection fee may be levied for
such cases.
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/- (Rupees twenty thousand only) 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"
Other conditions in the University Order (Clause A and
C) remain unaltered.
4. Sanction has been accorded by the Hon'ble Vice
Chancellor to implement the decision of the Governing Council.
5. The decision of the Governing Council (No. 52.41) is
implemented and orders are issued accordingly.
6. The order read 1" above stands modified to the above
extent.
REGISTRAR”
27. Perusal of the order dated 04.05.2020 (Exhibit-P10) 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 29
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 day (5.3.2020) 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
W.A. 155/2021 30
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 KUHS.
30. At any rate, only two of the Dental staff can be said to be absent.
Further, the appellant college cannot be held responsible for their absence in
not attending the valuation duty.
31. As regards the attendance of Dr. Shahanas (Reader), University
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 order (Exhibit-P8), that
there was no Reader in the Department of Orthodontics and no substitute
has been made, appellant college has submitted that Dr. Sanjay Bhat,
Reader (Orthodontics), had taken a long leave for personal reasons; he was
replaced by promoting Dr. Ajeesha (Orthodontics) 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.
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 31
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 (sixteen), 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 (staff/faculty). At the risk of
repetition, ground (e) 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 32
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 33
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 (cited supra), 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.26923
of 2020 dated 05.01.2021.
41. Accordingly, orders dated 4.5.2020 and 27.11.2020 (Exhibits-P10
& P12) issued 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
duly followed.
In the result, this Writ Appeal is allowed.
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