Allowed

Csi College of Nursing v. State of Kerala

Kerala HC4 Mar 2022WP(C)/5577/2022

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging a Nursing College's rejection for seat enhancement. The University applied a 2021 notification effective from Dec 2021 to an application submitted in Dec 2020. The Court held the order non est, directing the University to process it under the 29.03.2016 rules based on average result.

What did the court decide?

Impugned order set aside. Direction to grant permission for seat enhancement within two weeks as per the order dated 29.03.2016.

Csi College of Nursing Vs State of Kerala — 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 MR. JUSTICE AMIT RAWAL
FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
WP(C) NO. 5577 OF 2022

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PETITIONER:

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CSI COLLEGE OF NURSING,
DR. SOMERVELL MEMORIAL CSI MEDICAL COLLEGE AND HOSPITAL
KARAKONAM P.O., THIRUVANANTHAPURAM DISTRICT-695 504,
REPRESENTED BY ITS PRINCIPAL , SUJA BABY Y. Y,
D/O P.YESUDASAN, AGED 46 YEARS DEIGRATIA, OLIPPUSALA,
KODANGAVILA P.O., THIRUVANANTHAPURAM-695 123.

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BY ADVS.
S.SREEKUMAR (SR.)
ARUN.B.VARGHESE
VARNA MANOJ
AISWARYA V.S.

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 KERALA NURSES & MIDWIVES COUNCIL, REPRESENTED BY ITS REGISTRAR , RED CROSS ROAD, THIRUVANANTHAPURAM-695 035.

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3INDIAN NURSING COUNCIL,
REP. BY ITS SECRETARY, 8TH FLOOR, NBCC CENTRE,
PLOT NO 2, COMMUNITY CENTRE, OKHLA PHASE-1,
NEW DELHI-110 020.

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4 KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR, THRISSUR-680 596

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5 L B S CENTRE FOR SCIENCE AND TECHNOLOGY, REPRESENTED BY ITS DIRECTOR, EXTRA POLICE ROAD, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM-695 033.

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BY ADVS. N.RAGHURAJ

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DR.ABRAHAM P.MEACHINKARA,SC, INDIAN NURSING COUNCIL
SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH

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WP(C) NO. 5577 OF 2022 -2-

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SCIENCES

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SMT.SHAMEENA SALAHUDHEEN, SC, LBS CENTRE FOR SCIENCE
AND TECHNOLOGY
ADV.SHAMEENA SALAHUDHEEN-SC,ADV.ANNA LINDA EDEN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO. 5577 OF 2022 -3-

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JUDGMENT

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Order dated 24.01.2022 Ext.P13 of Kerala University of Health Sciences - respondent No.4 is under challenge in this writ petition whereby the request of the petitioner college for enhancement of the seats on the basis of the average result of regular examination, while, taking into consideration the formula of pass percentage, has been rejected, which, according to the pleadings and prima facie submissions is against the order dated 29.03.2016 Ext.P14.

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Petitioner is a Nursing College attached to Dr.Somervell Memorial CSL Medical College and Hospital. It was established in the academic year 2002-2003 and affiliated with Kerala University of Health Sciences respondent No.4. The parent hospital is a 690 bedded hospital with all specialties and the medical college is having an urban rural center at Kazhakoottam with 100 beds. The intake of students for the academic year 2020-21 was fifty(50).

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Mr.S.Sreekumar, learned Senior Counsel assisted by Mr.Arun Varghese and Ms.Anna Linda Eden, representing the

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WP(C) NO. 5577 OF 2022 -4-

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petitioner submit that respondent No.4 caused the notification dated 27.08.2020 Ext.P1 inviting applications for starting new colleges/additional courses/enhancement of seats for the academic year 2021-22. Pursuant to the aforementioned notification, an application for enhancement of the seats from 50 to 100 was submitted on 30.12.2020 Ext.P2. Government of Kerala - respondent No.1 vide Order dated 22.02.2021 Ext.P3 granted the permission for enhancement of the seats for academic year 2021-22 subject to the fulfillment of approval from Kerala Nurses and Midwives Council and Indian Nursing Council, respondent Nos.2 and 3 respectively. Respondent No.2 after conducting inspection resolved to accord for enhancement of the seats from 50 to 85 during the academic year 2021-22 vide order dated 21.06.2021 Ext.P4 respondent No.3 also in the similar manner had granted the intake of 85 seats vide order dated 06.09.2021 Ext.P5. However, respondent No.4 i.e., Kerala University of Health Sciences with whom the petitioner is affiliated did not communicate any intimation regarding the permission. As per the contents of the letter dated 18.07.2021 Ext.P7 it was

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WP(C) NO. 5577 OF 2022 -5-

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informed that the enhancement of seats for the academic year cannot be considered favourably as pass percentage of the college was below 50%. In response to the aforementioned letter the result of the pass percentage of the existing batches having 60% pass was submitted to respondent No.4 vide communication dated 18.10.2021 Ext.P8 and other relevant documents were also submitted, but the request was again not considered evident from communication dated 07.11.2021 Ext.P10. The aforementioned order was assailed by the petitioner in this Court in W.P(C). No.29496/2021. This Court vide judgment dated 28.12.2021 Ext.P12 directed the respondent No.4 to revisit the issue and in view thereof, vide impugned communication dated 24.01.2022 Ext.P13, has rejected the aforementioned request.

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It is contended that the university had been approbating and re-probating at the same time in as much as at earlier point of time, the condition for enhancement of the seat was a pass percentage as per the letter dated 16.04.2015 Ext.P11, but subsequently vide order dated 29.03.2016 Ext.P14 the Academic Council decided that for enhancement of the seats,

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WP(C) NO. 5577 OF 2022 -6-

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every result of regular examination of particular course shall be 50% and for new course the average result of all regular examinations of the courses under the same faculty in the institution shall be 50% at the time of processing of the application. In other words the nomenclature of the pass percentage was taken off. However the impugned order reflects that the University had been remiss in applying the previous order which was not in existence in the eyes of law as on plain and simple perusal of Ext.P13, there has been a reference of the previous order dated 16.04.2015 Ext.P11.

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Mr.P.Sreekumar learned counsel representing the respondent has countered the aforesaid arguments by supporting the impugned order on the ground that a duty is cast upon the respondents to ensure that the affiliated institutions maintain the standards required in the field of health sciences and one of the criteria relied on for that said purpose was pass percentage of the students from the said institutions as it had been done to ensure the quality of education imparted by the affiliated institutions. The College has to satisfy the condition that the average pass

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percentage of regular examinations of all existing batches should be above the minimum prescribed by the Governing Council in terms of the statute 5 (ii) (v) of Chapter XXI of the Kerala University of Health Sciences First Statutes, 2013 whereby the minimum pass percentage had been prescribed as 50%.

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During the course of the argument, this Court was handed over a copy of the notification dated 24.02.2020 whereby the Governing Council in exercise of the powers by virtue of Section 41 of the Kerala University of Health Sciences Act, 2010 with the approval from the Government of Kerala amended 5 Chapter XXI of the Kerala University of Health Sciences First Statutes, 2013 pertaining to the affiliation of colleges in the meeting held on 26.08.2019 assented to by the Chancellor on 02.12.2009 and had been held to be effective from the said date of decision whereby the average of the pass percentage had been the condition precedent for enhancement of the seats in the previous regular examinations of all existing batches of the same courses at the time of the submission of the applications and thus urged this Court for dismissal of the writ petition.

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WP(C) NO. 5577 OF 2022 -8-

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Before I could give my finding on the rival contentions

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of the parties, when the matter was taken up for hearing yesterday, Mr.S.Sreekumar, learned Senior Counsel submitted that difference between the criteria of application of pass percentage and average percentage are totally opposite to each other as by applying the ratio as per the decision of the University,

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the pass percentage would be much below than the average percentage. A formula for the said calculation has been submitted to this Court with advance copy to the counsel for the respondents which has not been denied and has been taken on record as Ext.X.

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In rebuttal, Mr.S.reekumar further contended that the

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notification b relied upon by the respondent no doubt is dated 24.02.2020 but had been notified only on 15.12.2021 and as per the provisions of the General Clauses Act, the date of the notification would be the effective date and not the date of it's decision. Moreover the said notification had not been referred to while rejecting the application of the petitioner on plain and simple perusal of the impugned order Ext.P13.

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WP(C) NO. 5577 OF 2022 -9-

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On perusal of Ext.X i.e., the chart viz-a-viz the average of pass percentage and average result, it is evident that the criteria for assessing the percentage by taking into consideration the expression 'pass' would be far less than that of the average result.

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I have heard learned counsel for the parties and appraised the paper books and of the view that there is force and merit in the arguments of Mr.Sreekumar and the reasons are not one but the following:

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The application for enhancement of the seats was submitted as far back as of 30.12.2020 vide Ext.P2. At the relevant point of time the order dated 29.03.2016 Ext.P14 was in force. Relevant portions of the same reads as under:

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“KERALA UNIVERSITY OF HEALTH SCIENCES

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Abstract

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Kerala University of Health Sciences – Academic – Norms for granting new courses/enhancement of seats – Orders issued.

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ACADEMIC SECTION

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No.2022/AC.H/2015/KUHS Thrissur, dated:29/03/2016

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Read: 1. U.O.No.2022/ACH/KUHS/2015 dated 16/04/2015

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WP(C) NO. 5577 OF 2022 -10-

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2.U.O.No.2022/ACH/KUHS/2015 dated 14/12/2015 3.Decision No.10.10 of the Academic council dated 15/12/2015 4.Decision No.29.18 of the Governing council dated 21/12/2015 5.U.O.No.5208/AC.A/2015/KUHS dated 08/01/2016

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ORDER

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The 10^th meeting of Academic council dated 15/12/2015 has resolved to modify the existing clause that, “for enhancement of seats the average result of all regular examinations of that particular course shall be 50% and for new course the average result of all regular examinations of the courses under same faculty in the institution shall be 50%” at the time of processing of application. The decision of Academic Council, was approved by the Governing Council dated 21/12/2015 and implemented vide order read (5) above.

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The U.O. referred (1) & (2) above stands modified to this extent. Orders are issued accordingly.

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Sd/-

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REGISTRAR”

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Before the submission of the application there was an order of University dated 16.04.2015 Ext.P11 which imposed the condition of 'pass percentage' which had been taken off in the subsequent decision dated 29.03.2016 Ext.P14 by confining it only to the

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'average' result insisting upon the pass percentage.

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It would be expedient to extract the order dated

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16.04.2015 Ext.P11.

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“KERALA UNIVERSITY OF HEALTH SCIENCES

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Abstract

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Academic – Granting of new courses/enhancement of seats – clarification - Orders issued.

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ACADEMIC SECTION

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No.2022/AC.H/2015/KUHS Thrissur, dated: 16/04/2015

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Read: 1. Decision No.24.09 of the minutes of twenty fourth

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meeting of Governing council held on 30/03/2015

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U.O.No.15/AC.L/1/KUHS dated 17.05.2013

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ORDER

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The twenty third meeting of the Governing Council decided to change the existing clause for granting of new courses/enhancement of seats, “as 60% or above University average in the final year results” as “average of the regular examinations of all years of the concerned batch shall be 50% or above”. Since there is ambiguity in the decision, the twenty fourth meeting of the Governing Council held on 30/03/2015 decided vide the agenda read (1) above to change the existing clause for granting of new courses/enhancement of seats as “the average of pass

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WP(C) NO. 5577 OF 2022 -12-

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percentage of regular examinations of all batches of the institution shall be 50% or above at the time of processing of application."

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The U.O. referred 2 above stands modified to this extent. Orders are issued accordingly.

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Sd/-

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CONTROLLER OF EXAMINATIONS In Charge of REGISTRAR”

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The tenor and mode of the impugned order as reflected

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from Ext.P13 from Paragraph Nos.4 and 6 are also extracted herein below:

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“4.The Principal vide paper read (4) above has requested repeatedly to reconsider their application for enhancement of seats of B.Sc. Nursing course for the academic year 2021-22 and again calculated the pass percentage which was increased to 43.75% after calculating with Fourth year Regular Examinations results of 2016 Admissions (The average calculated with pass % of 7 results). The college still have not achieved the required pass percentage. The calculation during reconsideration of the application is as follows:

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Year of Admission	2016	2017	2018	Total
First Year	22.00%	18.00%	45.10%
Second Year	48.94%	40.00%	-	3063/7=4375%
Third Year	53.19%	-	-	..
Fourth Year	79.07	-	-

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WP(C) NO. 5577 OF 2022 -13-

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In compliance with the Judgment of Hon'ble High Court of Kerala, the University has reconsidered the application again and calculated pass percentage by taking into consideration all the eligible results as on date by including the Third Year Regular Examinations results of 2017 Admissions by which the pass percentage was increased to 44.27% (The average calculated with pass % of 8 results). Even after doing this exercise also the college still lacks the required pass percentage. The calculation is as follows:

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Year of Admission	2016	2017	2018	Total
First Year	22.00%	18.00%	45.10%
Second Year	48.94%	40%	-	354.22/8=44.27%
Third Year	53.19%	47.92%	-
Fourth Year	79.07	-	-

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The University on the previous order had taken into consideration the applicability of the order dated 16.04.2015 which was not in vogue by insisting for pass percentage resulting into the rejection of the application. Things did not end here. The counter statement of the University do not reflect anything about the notification but only gives a passing reference of Statute V of Chapter XXI. In other words, the provisions of the notification had conspicuously been prevented from the notice of this Court.

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WP(C) NO. 5577 OF 2022 -14-

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Condition No.(v) of the notification dated 24.02.2020 notified on 15.12.2021 reads thus:

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“(v) In the case of additional courses and/or for enhancement of seats, the colleges shall satisfy the condition that 1^st batch of the courses in the institution under the same stream shall be passed out and the details of the average of pass percentage of previous regular examinations of all existing batches of the same course at the time of submitting the application and a declaration that the percentage is not below the minimum prescribed by the Governing Council in the Notification issued by the University for the purpose of the addition/enhancement concerned.”

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14. It is trite law that the effective date of the notification

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would be the date of it's notification in the official gazette. Application of the petitioner was submitted on 30.12.2020 whereas the notification which is still holding the field, as per the contention of the respondent, would be actually effective from 15.12.2021 and not from the date of the decision or the date notified by the University, thus, would not have any retrospective effect.

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For the reason aforementioned the impugned decision Ext.P13 is non est in the eyes of law and unsustainable, suffers

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from aberration, irrationality and accordingly set aside. Writ petition is allowed. Directions are given to the respondents to grant the permission to the petitioner for increase in the number of seats strictly as per the order dated 29.03.2016 extracted above, within a period of two weeks from the date of receipt of a certified

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copy of the order.

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Sd/-

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AMIT RAWAL
JUDGE

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vv

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WP(C) NO. 5577 OF 2022 -16-

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APPENDIX OF WP(C) 5577/2022

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PETITIONER EXHIBITS

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`Exhibit P1`	`TRUE COPY OF NOTIFICATION BEARING NO` `25494/AC1/GEN/A2/2020/KUHS DATED 27.8.2020` `ISSUED BY THE 4TH RESPONDENT UNIVERSITY`
`Exhibit P2`	`TRUE COPY OF THE APPLICATION DATED 30.12.2020` `SUBMITTED BY THE WRIT PETITIONER BEFORE THE` `4TH RESPONDENT FOR ENHANCEMENT OF SEATS`
`Exhibit P3`	`TRUE COPY OF GO(MS) NO 63/2021/H & FWD DATED` `22.2.2021 ISSUED BY THE 1ST RESPONDENT`
`Exhibit P4`	`TRUE COPY OF ORDER NO G 11654/03/NC DATED` `21.6.2021 ISSUED BY THE 2ND RESPONDENT`
`Exhibit P5`	`TRUE COPY OF FILE NO 18-16/3660-INC DATED` `6.9.2021 ISSUED BY THE 3RD RESPONDENT`
`Exhibit P6`	`TRUE COPY OF LETTER NO MCHK/2338/NC/20 DATED` `5.10.2021 SUBMITTED BY THE WRIT PETITIONER` `BEFORE THE 4TH RESPONDENT UNIVERSITY`
`Exhibit P7`	`TRUE COPY OF LETTER NO` `2020/28689/AC11/SNG/A1/KIHS DATED 18.7.2021` `ISSUED BY THE 4TH RESPONDENT TO THE WRIT` `PETITIONER`
`Exhibit P8`	`TRUE COPY OF LETTER NO MCHK/2838/NC DATED` `18.10.2021 SUBMITTED BY THE WRIT PETITIONER TO` `THE 4TH RESPONDENT UNIVERSITY`
`Exhibit P9`	`TRUE COPY OF LETTER NO MCHK/2838/NC DATED` `20.10.2021 SUBMITTED BY THE WRIT PETITIONER TO` `THE 4TH RESPONDENT UNIVERSITY`
`Exhibit P10`	`TRUE COPY OF LETTER NO` `2020/28689/AC11/NSG/A1/KIHS DATED 7.1.2021` `ISSUED BY THE 4TH RESPONDENT TO THE WRIT` `PETITIONER`

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WP(C) NO. 5577 OF 2022 -17-

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`Exhibit P11`	`TRUE COPY OF ORDER NO 2022/A.CH /2015/KUHS` `DATED 16.4.2015 ISSUED BY THE 4TH RESPONDENT` `UNIVERSITY`
`Exhibit P12`	`TRUE COPY OF THE JUDGMENT DATED 28.12.2021 IN` `WPC NO 29496/2021 OF THE HONOURABLE HIGH COURT` `OF KERALA`
`Exhibit P13`	`TRUE COPY OF ORDER BEARING NO UO NO` `48/2022/ACADEMIC/KUHS DATED 24.1.2022 ISSUED` `BY THE 4TH RESPONDENT`
`Exhibit P14`	`TRUE COPY OF THE ORDER BEARING NO` `2022/ACH/2015/KUHS DATED 29.3.2016`
`Exhibit P15`	`TRUE COPY OF THE CALCULATION STATEMENT OF 1ST` `YEAR REGULAR EXAMINATION OF 2016 ADMISSION`
`Exhibit P16`	`TRUE COPY OF THE CALCULATION STATEMENT OF 2ND` `YEAR REGULAR EXAMINATION OF 2016 ADMISSION`
`Exhibit P17`	`TRUE COPY OF THE CALCULATION STATEMENT OF 3RD` `YEAR REGULAR EXAMINATION OF 2016 ADMISSION`
`Exhibit P18`	`TRUE COPY OF THE CALCULATION STATEMENT OF 4TH` `YEAR REGULAR EXAMINATION OF 2016 ADMISSION`
`Exhibit P19`	`TRUE COPY OF THE CALCULATION STATEMENT OF 1ST` `YEAR REGULAR EXAMINATION OF 2017 ADMISSION`
`Exhibit P20`	`TRUE COPY OF THE CALCULATION STATEMENT OF 2ND` `YEAR REGULAR EXAMINATION OF 2017 ADMISSION`
`Exhibit P21`	`TRUE COPY OF THE CALCULATION STATEMENT OF 3RD` `YEAR REGULAR EXAMINATION OF 2017 ADMISSION`
`Exhibit P22`	`TRUE COPY OF THE CALCULATION STATEMENT OF 1ST` `YEAR REGULAR EXAMINATION OF 2018 ADMISSION`

Csi College of Nursing v. State of Kerala

Case brief

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What did the court decide?

Csi College of Nursing v. State of Kerala

Case brief

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