IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 WA.No. 241 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.28130/2008 Dated 03/11/2008 .................... APPELLANT(S): RESPONDENT NO.1: ------------------------------ THE UNIVERSITY OF CALICUT, REPRESENTED BY THE REGISTRAR, THENHIPALAM, MALAPPURAM. BY ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UTY. RESPONDENT(S): PETITIONER AND RESPONDENTS 2 TO 4: ------------------------------------------------- 1. THE DIRECTOR, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR P.O., TRICHUR. 2. THE MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, POCKET-14, SECTOR-8, DWARAKA, NEW DELHI. 3. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE DEPARTMENT, NARIMAN BHAVAN, NEW DELHI. 4. THE PUBLIC INFORMATION OFFICER, UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL FOR R3 SRI.ALEXANDER THOMAS, SC, MCI FOR R2 SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE FOR R1 SRI.TONY GEORGE KANNANTHANAM FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2009, ALONG WITH WA NO. 249 OF 2009 THE COURT ON 13/03/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NOS. 241 & 249 OF 2009 ----------------------------------------- Dated 13th March, 2009. JUDGMENT Balakrishnan Nair, J. W.A.NO.241/2009: The University of Calicut, the 1st respondent in the writ petition is the appellant. The 1st respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The 1st respondent is managing a Self Financing Medical College established under the jurisdiction of the University of Calicut. The college started functioning during the academic year 2003-04 with the approval of the Government of India, which was granted on the recommendation of the Medical Council of India (for short “MCI”). As per Ext.P1 order dated 25.10.2003, the appellant University granted provisional affiliation to the college for the year 2003-04. It was followed by Ext.P2 order dated 16.3.2005, granting provisional affiliation to the college for the academic year 2004-05. For the following year 2005-06 also, affiliation was granted provisionally as per Ext.P3 order dated 18.6.2005. All these orders contained a condition that WA 241 & 249/2009 2 students shall be admitted from the list published by the Commissioner for Entrance Examination, as per the rules framed by the University, the Government and the MCI from time to time, failing which affiliation will be cancelled. By Ext.P4 dated 4.9.2007, provisional affiliation was granted for the academic year 2006-07. The said order contained the following stipulation: “Selection and admission shall be made only on the basis of the rules and regulations of the University/Government, and on the basis of the directions issued by the University/Government from time to time, failing which the affiliation granted will automatically be cancelled.” 3. As per Ext.P5 letter dated 13.7.2007, the Government of India granted permission to the College for admission of students for the year 2007-2008. After the receipt of that letter, motion for extension of the affiliation was made by the 1st respondent for the said year. The University, by Ext.P6 communication dated 11.10.2007, sought for certain details concerning the admission of students for the year 2007-08. The Principal of the college replied by Ext.P7 dated 9.11.2007, stating that the details sought for are not relevant, still he is forwarding the prospectus published by the college, which contains the details regarding the method of admission followed by it. Since there was no response to the said letter, the Principal sent Ext.P8 reminder to the University on 22.2.2008. When the WA 241 & 249/2009 3 application for affiliation for the year 2007-08 was pending, the 1st respondent again applied for affiliation for the year 2008-09 on 4.3.2008. By Ext.P11 communication dated 10.6.2008, the Government of India approved sanction for admission of students for the academic year 2008-09. The Principal of the college forwarded Ext.P11 to the University along with Ext.P12 covering letter. 4. While so, the name of the 1st respondent's college was deleted from the list of affiliated Medical Colleges, published in the website of the Calicut University. That will be evident from Ext.P14 list downloaded from the website. The 1st respondent submits, his college was serial No.43 in that list, which stood deleted. The said respondent also came to know that the University has addressed a communication to the MCI, requesting the Council not to send persons to inspect the college at the time of conduct of the last semester's practical examination for the students of the first batch. The 1st respondent further added, pursuant to the said communication of the University, the MCI did not send its team for inspection of the college. In the meantime, a news item was also published in the press at the instance of the University of Calicut on 4.9.2008, stating that the 1st respondent's college has no affiliation with it. The 1st respondent, feeling aggrieved by the omission of the University to take a final decision on the applications WA 241 & 249/2009 4 filed by his college for affiliation for the years 2007-08 and 2008-09, approached this Court, by filing the writ petition, seeking the following reliefs: “(a) To issue a writ of mandamus or other appropriate order or direction to direct the respondent to include the name of the petitioner's college in the list of affiliated colleges, under the University. (b) To issue a writ of mandamus or other appropriate order or direction to direct the University to forward to the Medical Council of India the particulars required for enabling them to conduct the inspection at the time of the practical exam of the final year, treating the petitioner's college as a college having affiliation. (c) To issue a writ of mandamus or other appropriate order or direction to direct the respondent to confirm the provisional affiliation granted to the College as contemplated in St. 12 of Chapter 23 of the Calicut University First Statutes. (d) To declare that the petitioner is entitled to have the provisional affiliation of the College confirmed. (e) To issue a writ of mandamus or other appropriate order or direction to direct the University not to insist upon any annual affiliation or continuation of provisional affiliation, for the purpose of admission of students or conduct of the M.B.B.S Course in the petitioner's college. (f) To issue a writ of mandamus or other appropriate order or direction to direct the 4th respondent to forward all information sought for in Ext.P16, to the petitioner without any further delay. (g) To issue a writ of mandamus or other appropriate order or direction to direct respondents 2 and 3 to conduct WA 241 & 249/2009 5 appropriate inspection of the college at the appropriate time of the practical exam of the final year students, even if the University do not co-operate.” 5. The 1st respondent contended that since the MCI has granted recognition, his college is entitled to get affiliation. Further, as per the provisions in Chapter 23 of the First Statutes read with Section 23(1) of the Calicut University Act, the University is bound to grant permanent affiliation and not to follow the system of extending the provisional affiliation granted by it, from time to time. According to the 1st respondent, the inaction of the University was vitiated by mala fides for not falling in line with the policy of the Government, as per which, the Medical Colleges were requested to enter into an agreement with the Government, agreeing to surrender 50% of the seats to the State Government for admitting candidates from the list published by the Commissioner for Entrance Examinations. 6. The Calicut University/appellant filed a detailed counter affidavit, resisting the prayers in the writ petition. It challenged the locus standi of the 1st respondent/writ petitioner, who is stated to be the Director of the Medical College, to maintain the writ petition. Apart from the said technical contention, the University contested the matter on merits also. The allegations of mala fide action were emphatically denied. Further, it was pointed out that as per the rules and norms of the University and the WA 241 & 249/2009 6 Government, admissions can be made only based on the ranking of the candidates in the entrance test conducted by the Commissioner for Entrance Examinations. But, in the case on hand, for the academic year 2006-07 onwards, the management has adopted a new mode of admission, wherein marks of the entrance examination and marks of the qualifying examination are stated to be taken together. By that process, even ineligible persons were admitted during the academic year 2007-08. This is evident from Ext.R1(c) letter addressed by the MCI on 25.9.2008, asking the 1st respondent's college to remove from the rolls 18 of its students, who did not have the basic qualification for admission. Since the admissions were made illegally, the college has violated the conditions of provisional affiliation contained in Exts.P1 to P4. So, the 1st respondent's claim for renewal of affiliation for the subsequent years is unsustainable. It was also submitted that even in the face of the University Statutes, prohibiting admission of students without affiliation, the admissions were made illegally for the last two academic years. So, the University prayed for dismissal of the writ petition. 7. The 1st respondent filed a reply affidavit, dealing with the averments in the counter affidavit of the University and also reiterating his contentions. Along with his reply affidavit, the 1st respondent produced WA 241 & 249/2009 7 Ext.P21 communication addressed by the Registrar of the University to the Secretary of the Medical Council of India, stating that the said respondent's college is disqualified to get continued approval from the MCI. 8. The learned Single Judge, after hearing both sides, allowed the writ petition along with another writ petition, by a common judgment dated 3.11.2008. The learned Judge declared that the 1st respondent's institution continued to have provisional affiliation for the years 2007-08 and 2008-09. The Government of India and the MCI were directed to act upon the above declaration. The relevant portion of the judgment of the learned Single Judge reads as follows:- “24. In the result, the writ petitions are disposed of with the following observations and directions:- i) The two institutions viz. Jubilee Mission Medical College and Amala Institute of Medical Sciences should be deemed to have provisional affiliation for conducting MBBS courses, for the years 2007-08 and 2008-09 subject to the same terms and conditions as are contained in Ext.P4 order dated 4.1.2007 in both these cases. ii) The University shall treat these two institutions as having continued on the strength of provisional affiliation orders for the aforementioned two years. iii) The above mentioned declaration is without prejudice to the right of the University to exercise its powers under clause 14 of Chapter 23 of the Calicut University First Statutes 1977. iv) The Government of India and the Medical Council of WA 241 & 249/2009 8 India shall take note of the aforementioned declaration and treat these two institutions as duly affiliated in terms of the above mentioned declaration for the years 2007-08 and 2008-09 as well. v) The University shall pass orders in the matter of either confirmation of the affiliation or extension of the period of provisional affiliation before the end of the academic year 2008-09. The University shall in accordance with the declaration and observations made hereinabove send an intimation to the Government of India under section 11(2) of the Indian Medical Council Act fixing a date for the conduct of the practical examination for the final year students of these two institutions (which has been deferred by interim orders passed by this court) and requesting the Government of India to see that a team sponsored by the Medical Council of India inspects these two institutions at the time of conduct of the practical examinations. This shall be done without further delay, at any rate on or before 30.11.2008. The Government of India and the Medical Council of India shall take note of such intimation to be sent by the University of Calicut and depute a team to inspect these two institutions for the purpose of approval under section 11(2) of the Indian Medical Council Act. vi) Thereafter they shall proceed to exercise the statutory powers under the Indian Medical Council Act in the matter of recognizing the final degree, that is offered by these two affiliated colleges of the University of Calicut. It is only appropriate that the University considers the declaration of the final MBBS results of the students in these two institutions who give their final examinations in the course of the academic year 2008-2009 simultaneously to the students from other recognised colleges so as to avoid any hardship to the students of these two institutions. I am sure that the University shall see that the directions are implemented and take further appropriate consequential action.” 9. Feeling aggrieved by the judgment of the learned Single Judge, WA 241 & 249/2009 9 this Writ Appeal is filed by the University, mainly, raising the following grounds: The University Act or the Statutes framed thereunder do not provide that if the application for affiliation of an educational institution is not processed within a time-frame, it shall be taken that the application is allowed. There is no provision for deemed grant of affiliation. In the absence of any such provision, the declaration made by the learned Single Judge that the institution shall be deemed to have been affiliated to the University for the academic years 2007-08 and 2008-09, is plainly unsustainable. In fact, the above declaration made is contrary to the finding of the learned Judge himself in the earlier part of the judgment. The learned Single Judge overlooked the fact that the educational institution made admissions to the course in disregard of the provisions concerning admission, contained in the University Statutes. Observance of those conditions was one of the conditions for grant of affiliation. There is express prohibition against admitting students to a course without obtaining affiliation for the same. For both the aforementioned academic years, the college made admissions in gross disregard of the aforementioned mandatory provision. Going by the time-frame contained in the Statute concerning submission of the application for affiliation, its consideration, etc., applications were submitted, for both the years, far beyond the time WA 241 & 249/2009 10 limit prescribed for the same. Further, the 1st respondent's college got approval from the Government of India for continued affiliation only in the beginning of the academic year. In view of the above facts, the college concerned was not entitled to get its affiliation renewed or extended. Therefore, the declaration made by the learned Single Judge is unsustainable in law. In both the academic years concerned, students were admitted, employing a new formula for selection. The same was in violation of the conditions of affiliation. The above important aspect was also overlooked by the learned Single Judge in the judgment under appeal. Therefore, the Writ Appeal may be allowed and the Writ Petition may be dismissed, it is prayed. 10. We heard the learned counsel on both sides. The learned standing counsel Mr.P.C.Sasidharan, who appeared for the appellant, took us through the various provisions in Chapter 23 of the First Statutes of the University of Calicut. Statute 1 of the said Chapter provides that the college should have submitted its application for affiliation for the academic year 2007-08, at least by 31.10.2006. Statute 6 provides that the Syndicate of the University should consider the application at least by 31.3.2007. Statute 7 enables the Syndicate of the University to decide not to proceed with the application, if it is satisfied, inter alia, that the college has WA 241 & 249/2009 11 failed to observe the conditions of affiliation laid down for the previous year. Statute 9 deals with the grant of affiliation on being satisfied that the stipulations therein are satisfied. Clause (b) of Statute 9 would show that the grant of affiliation is not automatic, but only based on the reports of inspection made by the Commission or Commissions appointed by the University. Only upon being satisfied that all the conditions prescribed by the University are fulfilled, permission shall be given for commencement of the course in terms of clause (c) of Statute 9. Other conditions provided under Statute 9 includes an unconditional undertaking from the part of the Educational Agency/Management to the University to carry out faithfully, the provisions of the University Act, Statutes, Ordinances and Regulations and the directions issued by the University from time to time. Statute 12 deals with the grant of conditional affiliation. As per that statute, provisional affiliation can be granted for a specified period, subject to fulfilling certain conditions. Statute 16 grants the privilege of presenting students for the examination, held by the University, to an affiliated college. Statute 9(c) read with Statute 19(c) prohibits admission of students without affiliation. Referring to the above provisions, the learned counsel for the appellant/University submitted that the management in the present case has failed to follow the rules governing admission, prescribed by the WA 241 & 249/2009 12 University. The management has devised its own method of admission and therefore, the applications for affiliation for the aforementioned academic years were liable to be rejected. In the face of the above facts, the grant of affiliation by the learned Single Judge was unjustified. The learned counsel for the appellant relied on the decision of the Division Bench of this Court in Rural Education & Social Trust v. University of Calicut [2007(2) KLT 609] and submitted that every affiliated college is bound to abide by the Statutes of the University also, apart from following the regulations issued by All India bodies like M.C.I., A.I.C.T.E., N.C.T.E., etc. The said decision reiterates the principle that in anticipation of affiliation, students cannot be admitted. 11. The learned senior counsel Mr.Kurian George Kannanthanam, appearing for the 1st respondent, on the other hand, fully supported the directions issued by the learned Single Judge. Referring to Exts.P1 to P3, it is pointed out that in the relevant years, affiliation was granted after the advancement of the academic years and in the case of Ext.P4, affiliation was granted after the lapse of the academic year. The University was never following the stipulation that it should consider the application for affiliation at least by 31st March of the previous academic year. This is the case of all professional colleges, including Medical Colleges. The WA 241 & 249/2009 13 learned senior counsel pointed out that Ext.P9 circular dated 22.2.2008 issued by the University of Calicut, calls upon the colleges to apply for affiliation for the academic year 2008-09, even when they have not applied for affiliation up to 2007-08. So, according to the learned senior counsel, the said circular would show that the University was respecting the time- frame in the Statutes in Chapter 23 more in violation than in compliance and it is being pressed into service only against the 1st respondent's college. In view of the above factual position, the insistence of the University that the college should have admitted students only after getting provisional affiliation for every subsequent academic year is arbitrary and unreasonable. The same was never insisted in the case of other colleges, it is submitted. 12. Dealing with the main objection of the appellant concerning the method of admission of students, the learned senior counsel for the 1st respondent submitted that during the academic year 2007-08, no rules of the University governing admission were in force. So, the management followed a fair procedure. The said submission is further amplified by pointing out that the regulations of the MCI and the decision of the University incorporating the regulations of the MCI etc., stood repealed or abrogated by Section 3 of Act 17/2004. The said Act was challenged before the Apex Court and the Apex Court passed an interim order, inter alia, WA 241 & 249/2009 14 providing for admission of students, which was at variance with the one that was provided in Section 3 of Act 17/2004. Later, Act 19 of 2006 was enacted by the State Legislature, repealing Act 17/2004. Section 3 of Act 19/2006 provided a fresh method of admission. The said Section was struck down by this Court in Lisie Medical & Educational Institutions v. State of Kerala [2007(1) KLT 409]. So, the regulations, if any, framed by the University, which governed the field, were no longer in force, it is submitted. The Management, for the above two academic years, followed the procedure which provided for reckoning the marks of four subjects, relevant for the course, of the qualifying examination and also the marks of the entrance examination secured by the candidate concerned. The rank list was prepared by taking 50% of the marks scored in the entrance examination and 50% of the marks secured for the relevant subjects of the Plus Two course. Students were admitted as per the list prepared, following the above procedure. Some persons who did not secure 50% marks in the entrance examination also were included in the rank list, because of their high academic marks. This happened only in the academic year 2007-08. Thereupon, the MCI issued Ext.R1(c) notice, which was challenged by the 1st respondent before the Apex Court and as per the interim order passed by WA 241 & 249/2009 15 the Apex Court, 18 students named in Ext.R1(c) are continuing the course and they have taken the examination also. The said mistake was rectified while making admissions for the academic year 2008-09. The applications of the candidates who secured 50% marks in the entrance examination alone were entertained for 2008-09. The rank list was prepared by adding 50% of the marks obtained by the candidates in the entrance examination to 50% of their academic marks in the relevant subjects of Plus Two/equivalent examination. The above procedure followed in the year 2007-08 was upheld by the Division Bench of this Court in Kerala Self Financing Engineering College Managements Association v. Admission Supervisory Committee for Professional Colleges [2007(3) KLT 136]. The same method was followed for the academic year 2008-09 and it was upheld by a learned Single Judge of this Court in Kerala Christian Professional College Management Federation v. Admission Supervisory Committee for Professional Colleges [2008(4) KHC 284]. So, the method of admission, which is very seriously objected to by the appellant, has the approval of this Court, it is submitted. The learned senior counsel further submitted that the 1st batch of M.B.B.S students of the 1st respondent's college has already taken their final semester examination in November, WA 241 & 249/2009 16 2008. At the time of conduct of their last semester's practical examination in January, 2009, the inspection team of the MCI visited the college. In view of the above facts of the case, the learned senior counsel for the 1st respondent submitted that the objections taken by the University are flimsy and not of any substance. The above objections are seriously pressed only against the 1st respondent's college and another college, which was the writ petitioner in the connected case. In the case of any other college under the jurisdiction of the Calicut University, the said University is not taking such a stand. So, the learned Single Judge, having regard to the special facts of the case, was fully justified in making the declaration and issuing the consequential orders, it is submitted. 13. We considered the rival submissions made at the Bar. We have gone through the pleadings and the documents produced. The main grievance raised by the appellant against the judgment of the learned Single Judge relates to the declaration granted by the learned Judge that the 1st respondent's college shall be deemed to have been affiliated to the Calicut University for the academic years 2007-08 and 2008-09. The learned standing counsel for the appellant University contended that the only direction that could have been issued from this Court was to direct the University to consider the applications filed by the 1st respondent's college WA 241 & 249/2009 17 for the respective years.