Dismissed

V.N.Public Health and Educational Trust v. State of Kerala

Kerala HC20 Oct 2020RP/773/2020

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed two review petitions challenging a common judgment on Essentiality Certificates. Rejecting claims of error on the face of the record, the court held review is not an appeal and the petitioner cannot seek further reliefs where substantial prayers were rejected on merits, ensuring future eligibility for 2021-22 remains open.

What did the court decide?

The review petitions were dismissed, maintaining the common judgment but clarifying future eligibility.

V.N.Public Health and Educational Trust Vs State of… — Service and Employment | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942

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RP.No.773 OF 2020 IN WP(C). 27266/2019

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AGAINST THE JUDGMENT IN WP(C)No.27266/2019(G) DATED 12-10-2020 OF HIGH COURT OF KERALA

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REVIEW PETITIONER/PETITIONER:

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V.N.PUBLIC HEALTH AND EDUCATIONAL TRUST, A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD, KOZHIKODE, REPRESENTED BY ITS MANAGING TRUSTEE V.ANIL KUMAR.

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BY ADV. SRI.S.VINOD BHAT

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RESPONDENTS/RESPONDENTS:

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM – 695 001.

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2. MEDICAL COUNCIL OF INDIA, DWARAKA, NEW DELHI – 110 077, REPRESENTED BY ITS SECRETARY.

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3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEAR UDYOG BHAVAN, METRO STATION, MOULANA AZAD ROAD, NEW DELHI – 110 011 4. NATIONAL MEDICAL COMMISSION, DWARAKA, NEW DELHI – 110 077, REPRESENTED BY ITS CHAIRMAN.

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R.P.773 & 777 of 2020

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SRI. P. VIJAYAKUMAR, ASGI, SRI. TITUS MANI VETTOM, SC FOR MCI, SPL. GOVERNMENT PLEADER SRI. M.A. ASIF.

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 20.10.2020, ALONG WITH RP.777/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R.P.773 & 777 of 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942

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RP.No.777 OF 2020 IN WP(C). 29098/2019

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AGAINST THE JUDGMENT IN WP(C)No.29098/2019(J) DATED 12-10-2020 OF HIGH COURT OF KERALA

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REVIEW PETITIONER/PETITIONER:

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V.N.PUBLIC HEALTH AND EDUCATION TRUST, No.25, JAWAHAR MAIN ROAD, N.R.T NAGAR, THENI, TAMILNADU – 625531 REPRESENTED BY ITS AUTHORISED SIGNATORY V.ANILKUMAR.

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BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR SRI.KIRAN NARAYANAN SRI.PAUL VARGHESE (PALLATH) SRI.P.A.MOHAMMED ASLAM SHRI.PRASOON SUNNY SHRI.RAHUL RAJ P.

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RESPONDENTS/RESPONDENTS:

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1. STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001

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2. THE KERALA UNIVERSITY OF HEALTH & ALLIED SCIENCES (KUHAS), REPRESENTED BY THE REGISTRAR, MEDICAL COLLEGE P.O., THRISSUR – 680 596

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R.P.773 & 777 of 2020

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3. THE MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, POCKET-14, SECTOR-8, DWARAKA, PHASE-1, NEW DELHI – 110077 4. NATIONAL MEDICAL COMMISSION, REPRESENTED BY ITS SECRETARY, POCKET-14, SECTOR-8, DWARAKA, PHASE-1, NEW DELHI – 110077.

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SRI. P. VIJAYAKUMAR, ASGI, SRI. TITUS MANI VETTOM, SC FOR MCI, SPL. GOVERNMENT PLEADER SRI. M.A. ASIF.

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 20.10.2020, ALONG WITH RP.773/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R.P.773 & 777 of 2020

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O R D E R

~ ~ ~ ~ ~ ~

Dated this the 20^th day of October, 2020

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W.P.(C) Nos.27266, 29098 and 34275 of 2019

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were disposed of by a common judgment dated 12.10.2020 by this Court. All the three writ petitions were filed by the review petitioner herein. Review petitions have been preferred against the common judgment dated 12.10.2020, in W.P.(C) Nos.27266/2019 and 29098/2019.

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By the common judgment, the three writ petitions

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were disposed of with the following directions:-

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“(1) W.P.(C) No.27266/2019 is allowed to the extent of setting aside Ext.P6.

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(2) W.P.(C) Nos.29098/2019 and 34275/2019 are dismissed.

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(3) In the event of petitioner submitting application for EC for the year 2022-'23 for starting Medical College, the 1^st respondent-State of Kerala in W.P.(C) No.27266/2019 shall consider the said application on merits taking into consideration the findings and observations made hereinabove, and pass orders thereon within a period of one month from the date of receipt of the application.

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R.P.773 & 777 of 2020

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(4) If the petitioner makes a request to the 2^nd respondent-University in W.P.(C) No.29098/2019 for issuance of Consent of Affiliation, the 2^nd respondent shall permit the petitioner to make formal application by opening its portal for a period of five days with intimation to the petitioner, without insisting upon EC from the 1^st respondent and shall take a decision thereon within three months.”

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Finding errors in the said judgment, the petitioner seeks review invoking Order XLVII Rule 1 of the Code of Civil Procedure.

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Advocate S. Vinod Bhat appearing for the review petitioner in RP No.773/2020 submitted that in the writ petition, the petitioner had sought reliefs in order to set up a new Medical College for the Academic Year 2020-'21. By the judgment under review, this Court gave directions to the petitioner for submitting application for the Academic Year 2022-'23.

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The counsel submits that the Medical Council of India has not closed the issue of eligibility of the petitioner to start the Medical College for the year 2020-'21 and hence this Court ought not have directed the petitioner to make applications for the year 2022-'23. Furthermore, the learned

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R.P.773 & 777 of 2020

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counsel contended, even for the subsequent Academic Year 2021-'22, the last date for submission of applications for starting new Medical Colleges, now stands extended till 15.11.2020. Therefore, the petitioner may be permitted to approach the authorities for starting Medical College in the Academic Year 2021-'22.

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Advocate P. Sanjay appearing for the petitioner in RP No.777/2020 contended that when the writ petitions were filed seeking Essentiality Certificate from the State Government and Consent of Affiliation from the Kerala University of Health Sciences for the year 2020-'21, this Court ought not have condemned the petitioner to make an application for the year 2022-'23. Such direction is an error apparent on the face of the record and is liable to be reviewed, urged the learned counsel for the review petitioner.

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Heard learned counsel for the review petitioner, learned Standing Counsel for MCI, the learned Standing Counsel for the University and the learned Government Pleader appearing for the State of Kerala.

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R.P.773 & 777 of 2020

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W.P.(C) No.27266/2019 was allowed by this Court only to a limited extent, denying other reliefs. W.P.(C) No.29098/2019 was dismissed. This Court, taking into account the over all situation, gave certain directions as per paragraph 39(3) and paragraph 39(4) of the judgment. As the writ petitions were considered on merits and judgments delivered rejecting the substantial prayers of the petitioner, the petitioner cannot seek further reliefs in these review petitions.

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The Hon'ble Apex Court in the judgment in Perry Kansangra v. Smriti Madan Kansangra [2019 (3) SCALE 357] held that review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. The power of review may be exercised when some mistake or error apparent on the face of the record is found. But, error on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on the points where there may be two opinions.

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R.P.773 & 777 of 2020

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Power of review is not to be exercised on the ground that the decision was erroneous on merits. Going by the principle enunciated by the Hon'ble Apex Court in the matter of review power, I find that the petitioner has not made out a ground to review the common judgment in the writ petitions.

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Both the review petitions are accordingly dismissed. However, it is made clear that the judgment in the writ petitions may not be an impediment to the petitioner to apply for and obtain permission for starting the Medical College during the Academic Year 2021-'22 itself, if the petitioner is otherwise eligible.

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Sd/- N. NAGARESH, JUDGE

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aks/20.10.2020

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R.P.773 & 777 of 2020

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APPENDIX IN RP.777/2020

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REVIEW PETITIONER/PETITIONER'S EXHIBITS:

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ANNEXURE-1 TRUE COPY OF THE COMMUNICATION NO:MARB-NMC-UG(H)-MED./20038 DATED 0910-2020. ANNEXURE-2 TRUE COPY OF THE COMMUNICATION DATED 10-10-2020.

V.N.Public Health and Educational Trust v. State of Kerala

Case brief

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V.N.Public Health and Educational Trust v. State of Kerala

Case brief

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