Dismissed

Azeezla Institute of Medical Science and Research v. Dr.Afnas T.P.

Kerala HC8 Mar 2022WA/128/2021

Case brief

AI extract

What is this about?

The High Court turned down an appeal by Azeezia Institute challenging a lower court order directing the payment of revised stipends to PG students. The Court set a procedure requiring the institution to submit monthly attendance reports to the University to verify eligibility for stipend payment in accordance with Government clarification.

What did the court decide?

Directs appellant to submit monthly attendance reports to the University for verification and pay stipend to eligible students within ten days of verification.

Azeezla Institute of Medical Science and Research Vs… — Education and Admissions | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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&

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 8^TH DAY OF MARCH 2022 / 17TH PHALGUNA, 1943

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WA NO. 128 OF 2021

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AGAINST THE ORDER/JUDGMENT IN WP(C) 11969/2020 OF HIGH

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COURT OF KERALA

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APPELLANT/S:

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1 AZEEZIA INSTITUTE OF MEDICAL SCIENCE AND RESEARCH, MEEYANNOR, KOLLAM - 691 537, REPRESENTED BY THE PRINCIPAL.

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2THE PRINCIPAL, AZEEZIA INSTITUTE OF MEDICAL
SCIENCE AND RESEARCH
MEEYANNOR, KOLLAM -691 537.
BY ADVS.
KURIAN GEORGE KANNANTHANAM (SR.)
SRI.TONY GEORGE KANNANTHANAM
SRI.THOMAS GEORGE

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RESPONDENT/S:

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1DR.AFNAS T.P.,
THOTTEKKARAPALLIYALIL HOUSE,
VALANCHERY P.O.,
MALAPPURAM - 676 552.

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2 DR.FEBINKALLAN POTTAMAL HOUSE, KOTTAPPURAM, ANDIYOORKUNNU P.O., MALAPPURAM - 673 637.

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3 DR.THAHZINA RAHIM ROSE HOUSE, PANOOR, PALLANA P.O., THRIKKUNNAPPUZHA, HARIPPAD, ALAPPUZHA - 690 515.

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W.A.128/2021

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4 DR.MIDHUN RAMESH ELAVUMKAL HOUSE, NEAR NIRMALA COLLEGE, MUVATTUPUZHA, ERNAKULAM - 686 661.

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5 DR.LESSITHA N.K. NADUVILAPARAMBIL HOUSE, CHALAKKAL KUTHIYATHODE P.O., ERNAKULAM - 683 594.

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6 DR.SRUTHI M. PERUMANA, KRWA B 64, KAMARAJ NAGAR, THAMALAM, POOJAPURA P.O., THIRUVANANTHAPURAM - 695 012.

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7 DR.SHAHBAS SHAMS SUROOR, 44/1052F, ARYAPADAM LANE, IFC ROAD, ACHTUAM LAYOUT, KALOOR, ERNAKULAM - 682 017.

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8 DR.NISHAD NAZIMUDDIN FLAT 3A, REGENCY MANOR, AMBALANAGAR, THIRUVANANTHAPURAM - 695 003.

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9 DR.HEBIN DAS C.K. CHETTYAN KANDY HOUSE, THAMARASSERY P.O., KOZHIKODE - 673 573.

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10 JAYA G.KRISHNA GEETHA BHAVANAM, PARAKKARA P.O., THATTAYIL, PATHANAMTHITTA - 691 525.

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11 DR.ARATHY J.R. PALLICHALIL HOUSE, CHENOLI POST, PERAMBRA VIA., KOZHIKODE - 673 525.

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12 DR.NIKITHA SAIF NINAS, RRA 26E, ROSE NAGAR, SREEKARIYAM, THIRUVANANTHAPURAM - 695 001.

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13 DR.JAFIN BASHEER VALIYAKATH HOUSE, FLAT 3B, SKYLINE RIVERSCAPE APARTMENT, THOTTUMUGHAM P.O., ALUVA, ERNAKULAM - 683 105.

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14 DR.MOHAMMED IQBAL KOTTA KOTTA HOUSE, KONDOTTY P.O., MALAPPURAM - 673 638.

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W.A.128/2021

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15 DR.JAYASOORYA P.G. KALPADAKKAL VEEDU, P AZHAYAKUNNUMMEL, KILIMANOOR, THIRUVANANTHAPURAM - 695 601.

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16 DR.HAFEEF MUHAMMED KURUVADANGAL HOUSE, CHERUVADI P.O., MAVOOR VIA., KOZHIKODE - 673 661.

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17 DR.TASNEEM ABDUL VAHAB BAITH AL RAHMATH, KUDAVOOR P.O., THONNAKKAL, THIRUVANANTHAPURAM - 695 313.

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18 DR.MUHSIN V.K. VARIYAKUNDIL HOUSE, ANCHACHAVIDI P.O., PALLISSERI, MALAPPURAM - 676 525.

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19 DR.FARZIN N.ABDU NALAKATH HOUSE, VENGARA P.O., MALAPPURAM - 676 304.

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20 DR.RAIZ IQBAL KARIPARAMBIL HOUSE, COURT SIDE ROAD, IRINJALAKUDA P.O., THRISSUR - 680 121.

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21 DR.ANJALI A.R. GEETHA NIVAS, NEAR MILK SOCIETY ROAD, ADAVANKUNNU, MANANTHAVADY, WAYANAD DISTRICT - 670 645.

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22 SHYJAR BABU J. NARAKKOTH HOUSE, NANMINDA P.O., KOZHIKODE - 673 613.

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23 DR.MUMTHAZ THERIATH MAJEED HARAMAIN HOUSE, VADAKKANGARA P.O., MANKADA VIA., MALAPPURAM - 679 324.

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24 DR.NISHANA S.NISHA MUDAPURAM P.O., CHIRAYINKEEZHU, THIRUVANANTHAPURAM - 695 314.

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25 DR.RAHEENA K.P. SAFA MAHAL, ANJARAKKANDI, THATTARI, KANNUR - 670 612.

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26 DR.JASMINE A.N. A.S.MANZIL, KOLLAMAKAVE, PAZHAKUTTY P.O., NEDUMANGAD, THIRUVANANTHAPURAM - 695 561.

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

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W.A.128/2021

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28KERALA UNIVERSITY OF HEALTH SCIENCES
THRISSUR, REPRESENTED BY ITS REGISTRAR.
BY ADVS.
K.JAJU BABU (SR.)
R.RAJPRADEEP
SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF
HEALTH SCIENCES
M.U.VIJAYALAKSHMI
BRIJESH MOHAN

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OTHER PRESENT:

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SRI. K.P.HARISH, SR GP FOR R27

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

W.A.128/2021

J U D G M E N T

Dated this the 8^th day of March, 2022

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S. Manikumar, CJ.

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Writ petitioners namely, students of Azeezia Institute of Medical

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Science and Research, Kollam, have sought for the following reliefs:

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“1) Issue a Writ of mandamus or any other appropriate Writ, Order of Direction, commanding the respondents 3 and 4 to pay the revised stipend at the rate of Rs 43,000/and Rs 44,000/- per month from the date the petitioners joined the Post Graduate Course till 30/06/2019 and then at the rate of Rs 53,000/- and Rs 54,000/- till the completion of the course or till next revision on the basis of Ext P2 & P5 and detailed in Ext P8 within a time to be fixed by this hon'ble court.

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Issue a Writ of mandamus or any other appropriate Writ, Order of Direction commanding the respondents 3 and 4 to pay the arrears of stipend payable to the petitioner from till date with interest at 12 % per annum within a time to be fixed by this hon'ble court.”

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2. Facts leading to filing of the writ petition are as under:

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The Petitioners are 1^st and 2^nd years Post Graduate student of various disciplines studying in the 3^rd respondent college. The stipend of Post Graduate Medical students was revised to Rs 43,000/- Rs 44,000/- and Rs 45,000/- for 1^st , 2^nd and 3^rd years respectively, with effect from 01/09/2015, as per Ext P2 Government Order and further revised by Exhibit P5.

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W.A.128/2021

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The petitioners joined course in the year 2018 (2^nd year) and 2019 (1^st year) respectively as per the allotment made by the Commissioner of Entrance Examinations.

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The petitioners were not paid the revised stipend and hence a representation was sent by the petitioners to the Azeezia Institute of Medical Science and Research, Kollam and Principal Azeezia Institute of Medical Science and Research, 3^rd and 4^th respondents. Hence the Writ Petition.

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Adverting to the rival submissions, writ court, vide judgment in W.P(C). No.11969 of 2020 dated 4.11.2020, ordered thus:

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“7. As disclosed by the pleadings in the writ petition, respondents 3 and 4, as on date, are liable to pay stipend to the PG Medical students studying in their institutions based on Exts.P2 and P5. The Kerala University of Health Sciences also insist for payment of stipend on the lines already laid down by the competent authorities. Though the Admission Supervisory Committee has expressed certain opinions and respondents 3 and 4 have approached the Medical Council of India (now the National Medical Commission), the mandate of Exts.P2 and P5 are not thereby taken away. In the circumstances, the petitioners are entitled to relief.

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Accordingly, respondents 3 and 4 are directed to pay the stipend payable to PG Medical students as per Exts.P2 and P5, to the petitioners within a period of three months. Respondents 3 and 4 will be entitled to adjust any stipend, if already paid or adjusted against the examination fees. Respondents 3 and 4 shall continue to pay the stipend as and when falls due.

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W.A.128/2021

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Writ petition is disposed of as above.”

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Being aggrieved, instant writ appeal is filed, on the grounds

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inter alia that -

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A. The learned Judge ought not to have issued any mandamus to the Appellants, since the Appellant is not an “authority" under Article 12 of the Constitution, being a private Self Financing College.

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B. The financial obligations created by a Regulation cannot be enforced through a Writ Petition, under Article 226 of the Constitution of India, against a private institution.

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C. The Government had an obligation to reconsider the whole issue in the light of the observations of the Admission Supervisory Committee. The learned judge was in error in directing the appellants to pay the stipend, without any appropriate directions to the Government.

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Though the judgment in W.P(C). No.11969 of 2020 dated 4.11.2020 is impugned on the grounds stated supra, by inviting attention of this court to clause No.13.3 of the Medical Council of India Salient Features of Postgraduate Medical Education Regulations, 2000, Mr. Kurian Georoge Kannanthanam, learned Senior Counsel for the appellant College submitted that “ the post graduate students of institutions which are located in various States/Union Territories shall be paid remuneration at par with the remuneration being paid to the Post Graduate students of State Government Medical Institutions/Central Government Medical Institutions, in the State/Union Territories in which the Institution is located. Similar procedure shall be followed in the matter of grant of leave to Post Graduate students.”

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W.A.128/2021 8

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He submitted that in Exhibit P5 G.O(Ms). No.101/2019/H&FWD dated 8.7.2019 is an order enhancing the stipend of House Surgeon/Resident Doctors in various Government Medical/Dental Colleges of the State.

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According to the learned counsel, though regulation 13.3 of Medical Council of India Salient Features of Postgraduate Medical Education Regulations, 2000, states that the post graduate students of institutions, which are located in various States/Union Territories shall be paid remuneration at par with the remuneration being paid to the Post Graduate students of State Government Medical Institutions/Central Government Medical Institutions, the procedure to be followed in the matter of payment of stipend is not specifically stated and therefore, in the above circumstances, the appellant college was constrained to approach the Director of Medical Education, Thiruvananthapuram for clarification.

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Inviting the attention of this court to the letter dated 24.2.2022, marked as Annexure-I, Mr. Kurian Georoge Kannanthanam, learned Senior Counsel for the appellant submitted that the issue as to payment of stipend for PG students under Medical Education was addressed and clarified to the effect that the stipend has to be calculated strictly on the basis of the monthly attendance report submitted by the Head of the departments concerned, to the Kerala University of Health Sciences, Thrissur. He further submitted that as

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W.A.128/2021

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per the abovesaid Government letter, students are eligible for stipend on the authorised leave/duty off granted to them. He further submitted that appellants are willing to pay stipend in accordance with the clarification issued, if not paid earlier. Submission of learned Senior Counsel for the appellant is placed on record.

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Responding to the above, Mr. Jaju Babu, learned Senior Counsel for the students/respondents submitted that stipend be paid, in accordance with the clarification issued. Submission is placed on record.

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Mr. Jaju Babu, learned Senior Counsel appearing for students also agreed that based on monthly statement of attendance report submitted by the Department concerned to the Kerala University of Health Sciences, Thrissur, 2^nd respondent therein, stipend for the Post Graduate students be paid.

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Heard learned counsel for the parties and perused the materials available on record.

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Exhibit P1 is the Medical Council of India Salient Features of Postgraduate Medical Education Regulations, 2000, wherein Clause 13.3 reads thus:

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“13.3 The Post Graduate students of the institutions which are located in various States/ Union Territories shall be paid remuneration at par with the remuneration being paid to the Post Graduate students of State Government Medical Institutions/Central Government Medical Institutions, in the

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W.A.128/2021

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State/Union Territory in which the institution is located. Similar procedure shall be followed in the matter of grant of leave to Post Graduate students.”

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G.O(Ms). No.262/2015/H&FWD dated 18.11.2015, Exhibit P2 is the stipend fixed by the Government in respect of Junior Residents (Post Graduate students) and Senior Residents (Super Speciality Students). GO(Ms).No.101/2019/H&FWD dated 8.7.2019, Exhibit P5 is the Government Order enhancing the stipend of the House Surgeons/Resident Doctors in various Government Medical/Dental Colleges of the State.

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Thus, as rightly contended by learned Senior Counsel for the appellants that based on the letter dated 18.2.2022 of the Principal, Azeezia Institute of Medical Science and Research, Kollam, appellant herein, the Director of Medical Education, Thiruvananthapuram seemed to have offered his remarks vide letter dated 23.2.2022 and after considering the same, Government have issued Annexure A1 clarification, as to how the stipend for PG students has to be calculated. Annexure-I reads thus:

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“GOVERNMENT OF KERALA

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Health&Family Welfare (S) Department

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No-S3/61/2022-Health 24-02-2022,Thiruvananthapuram

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From

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The Additional Chief Secretary to Government

W.A.128/2021

The Principal,

Azeezia Institute of Medical Sciences and Research, Meeyannoor.P.O, Kollam-691537

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Sir, Sub: H&FWD-Medical Education-Academic- Attendance of PG students,MD/MS-Stipend-Clarification-reg.

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Ref: 1)Your letter No.AIMS/183/2022 dated 18/02/2022 2) Letter No.B9/1739/2022/DME dated 23/02/2022 from the Director of Medical Education, Thiruvananthapuram.

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I am to invite your attention to the references cited and to inform you that the stipend for PG students under Medical Education calculated strictly on the basis of the monthly attendance report submitted by the Head of the departments concerned. The students are eligible for stipend on the authorized leave/ duty off granted to them.

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Yours Faithfully,

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VIJAYAKUMAR S JOINT SECRETARY

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For Additional Chief Secretary t0 Government”

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17. In the light of the clarifications issued and the submissions

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of learned counsel for the parties, a direction is issued to Azeezia Institute of Medical Science and Research, Kollam, appellant to furnish a consolidated statement of monthly attendance report of the students/respondents, already submitted by the departments concerned, to Mr. Jaju Babu, learned Senior Counsel for the students/respondents within two days from today.

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On receipt of the same, students/respondents to verify the same. Thereafter, the appellants are directed to pay the stipend to

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W.A.128/2021

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the students/respondents, who are eligible to stipend based on the monthly attendance report submitted by the Head of the Departments concerned to the University and on authorised leave or duty off granted to them.

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Payment of stipend should be done within ten days from the date of scrutiny/verification or in the alternative, if there is any requirement for adjustment towards the fees to be paid for the course, and the same can also be made by the appellant with the consent of the students/respondents. The abovesaid direction is issued, placing on record the submission of learned Senior Counsel for the students/respondents.

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Monthly statement of attendance required to be submitted to Kerala University of Health Sciences, Thrissur, if not already sent, be sent by appellants forthwith.

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Pending interlocutory applications, if any, shall stand closed.

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Sd/S. Manikumar, Chief Justice

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Sd/-

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Shaji P. Chaly, Judge

sou.

W.A.128/2021

APPENDIX

ANNEXURE A1 - COPY OF THE LETTER NO.S3/61/2022-HEALTH DATED 24.2.2022 OF HEALTH & FAMILY WELFARE (S) DEPARTMENT.

Azeezla Institute of Medical Science and Research v. Dr.Afnas T.P.

Case brief

What is this about?

What did the court decide?

Azeezla Institute of Medical Science and Research v. Dr.Afnas T.P.

Case brief

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What the court decided

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