IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 19599 of 2009(T) ----------------------------------------- PETITIONER(S): ------------------------- THE SAHRDAYA COLLEGE OF ENGINEERING & TECHNOLOGY, REPRESENTED BY ITS DIRECTOR, KODAKARA, TRICHUR. BY MR.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE, MR.TONY GEORGE KANNANTHANAM. RESPONDENT(S): --------------------------- 1. THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENJIPPALAM, MALAPPURAM DISTRICT. 2. THE VICE CHANCELLOR, UNIVERSITY OF CALICUT, THENJIPPALAM, MALAPPURAM DISTRICT. R1 & R2 BY ADV. MR.P.C.SASIDHARAN, SC, CALICUT UTY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2009 ALONG WITH WPC NO. 19591 OF 2009, WPC.NO. 19600 OF 2009 AND WPC NO. 19604 OF 2009, THE COURT ON 21/08/2009 DELIVERED THE FOLLOWING: Kss V.GIRI, J ....................... W.P.(C)s.19599, 19591, 19600 & 19604/2009 ....................... Dated this the 21st day of August, 2009 JUDGMENT A decision taken by the Calicut University declining to extend the provisional affiliation of the petitioners herein have been challenged in these writ petitions. All the petitioners are Private Self Financing Colleges. Petitioners in W.P.(C).19599/2009 & 19600/2009 are the Managers of Self Financing Engineering Colleges and the petitioners in W.P.(C)s.19591/2009 & 19604/2009 are Medical institutions. All the institutions were granted provisional affiliation by the University of Calicut earlier and such affiliation was extended thereafter, from year to year. A dispute arose regarding extension of the provisional affiliation of these institutions for the year 2007-08 and 2008-09. This Court had in the case of Medical Institutions, vide decision in Jubilee Mission Medical College and Research Institute v. University of Calicut (2008 (4) KLT 966) held that the University was bound to take a decision regarding extension of the provisional affiliation of those institutions before the W.P.(C).19599/2009 & Connected Cases 2 commencement of the academic year and if the University does not take a decision in that regard, then, the provisional affiliation must be treated as having been extended for one more year. Accordingly, it was declared that the Medical institutions must be deemed to have had a provisional affiliation for the years 2007-08 and 2008- 09. Consequential directions on the strength of such declaration were also issued. 2. The judgment in Jubilee Mission Medical College was affirmed by a Division Bench. 3. In the case of Medical institutions, the challenge has been mounted against the decision taken by the Syndicate of the University, on 18.6.2009, declining to extend the provisional affiliation for the year 2009-10. 4. In so far as the Engineering colleges are concerned, a similar view was adopted by a learned Judge in W.P.(C). 17639/2008 and Connected Cases and by judgment dated 23.1.2009, it was inter alia declared that the provisional affiliation for those two institutions must be treated as W.P.(C).19599/2009 & Connected Cases 3 extended till an order is passed on their applications. It was further directed that the appearance of the students from those institutions in the examinations pursuant to the interim orders passed by this Court, shall be regularized and the answer papers shall be valued and results declared. The Engineering colleges have also challenged the decision taken by the Syndicate of the Calicut University on 18.6.2009 declining to grant provisional affiliation for the year 2009-10. Since there is a commonality in several of the issues that have been raised for consideration in these writ petitions, they have been taken up together. The common issues shall be dealt with in the first instance and those issues which are peculiar to the Engineering Colleges or the Medical institutions, as the case may be, shall be dealt with separately. 5. When these writ petitions came up for admission, I heard Mr.Kurian George Kannamthanam, learned senior counsel for the petitioners and Mr.P.C.Sasidharan, learned counsel for the University, initially on the question of interim relief. It was then felt that more W.P.(C).19599/2009 & Connected Cases 4 elaborate submission by the counsel would be required and by consent of the counsel, I heard final arguments in the writ petitions on several days. Therefore, these writ petitions are being disposed of by a common judgment. Elaborate submissions have been made by the counsel on either side. Thereafter, at my instance, counsel have submitted written submissions and I have considered the same as well. I will refer to the bare facts in W.P.(C). 19599/2009 filed by the Sahrdaya College of Engineering and Technology as typical of the contentions raised by the Engineering Colleges and thereafter, I will refer to the bare facts in W.P.(C).19591/2009, which would be typical of the contentions raised by the Medical Institution. On my request, Sri.Alexander Thomas learned Standing Counsel for the Medical Council of India also made submissions regarding certain provisions of the Medical Council of India Act, 1956. 6. The petitioner in W.P.(C).19599/2009 is the Manager of a Self Financing Engineering College under the University of Calicut. It is contended that the Government have been making efforts since 2006 to take W.P.(C).19599/2009 & Connected Cases 5 over 50% of the seats in Private Self Financing Professional Colleges. According to them, the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non- Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006, (hereinafter referred to as the Professional Colleges Act) was enacted to take over 50% of the seats in those Colleges to be filled up through Government machinery, at the rates fixed by the Government. Substantive provisions of the said Act were struck down by a Division Bench of this Court in Lisie Medical and Educational Institution v. State of Kerala (2007 (1) KLT 409). The institution was affiliated to the University of Calicut and the affiliation was being extended on an year to year basis. But invariably the order of affiliation was given only in the course of the academic year and this was the case in almost all the institutions. There is a contention raised by the Colleges to the effect that the Management of these institutions have been singled out for discriminatory treatment by the Government since they W.P.(C).19599/2009 & Connected Cases 6 come under a common umbrella, viz. the Kerala Christian Professional College Managements Federation. The Christian Managements have resisted the pressures exerted by the Government and the University and have followed a fair, transparent and merit based method of selection. The Association comprises 10 Catholic Engineering Colleges in Kerala (and two Medical Colleges which are the petitioners in the other two writ petitions). Admissions have been based on a common prospectus issued by the Association. Management quota has been abolished in these colleges. Capitation fees has been prohibited. It is contended that merit is the only basis for the admission and accordingly, the marks obtained by the candidates in the Common Entrance Test conducted by the State and the marks obtained by the candidates in the qualifying examinations have been adopted as the basis for determining the merit. It is contended that the University thereafter, embarked upon a series of measures against the four Colleges coming within their jurisdiction and this was because the Associations did not yield to Government's pressure. The students were not permitted to appear for the successive exams thereafter, W.P.(C).19599/2009 & Connected Cases 7 and thus, a difficulty was faced for several semester exams. It was by Ext.P6 judgment, that this Court had declared that the Colleges must be treated as having provisional affiliation till a contra decision is taken on their applications. Though the University filed an appeal against the said judgment (Ext.P6), appeals have not been admitted, but ordered to be posted for hearing. Petitioner had applied for extension of affiliation for 2009-10 on 20.3.2009. (in the case of the other Engineering College - the petitioner in W.P.(C).19600/09 had applied on 24.2.2009). Nothing was heard from the University on the said application (Ext.R1(b)). The University was bound to take a decision on the question of continuance of the affiliation or confirmation of affiliation as the case may be, by 31.3.2009. It was not done. The Management Association had issued an advertisement in all the editions of Malayala Manorama, Deepika and The Hindu, calling for applicants to the ten Engineering Colleges coming under the Management Association. A common prospectus was issued by these Colleges. Petitioner contends that immediately thereafter, a news item appeared in the newspapers warning the public that no W.P.(C).19599/2009 & Connected Cases 8 students should take an admission in the colleges which do not have continued affiliation. Names of the petitioner's colleges were not included in the University website. News item referred to a press release by the University in this regard as evidenced by Ext.P2. It seems that the press release came about on the day following the issuance of a notification by the Association calling for applications from interested students for admission to B.Tech course for the year 2009-10. 7. A news item was flashed on 18.6.2009 that the petitioner's College and three other colleges affiliated to the Calicut University would have no affiliation for 2009- 10. Petitioner requested the University to give a copy of the decision taken. It was not done. Petitioner approached this Court for a direction to the University to give a copy of the decision taken on 18.6.2009. Ultimately this Court issued a direction to the University to give a copy of the decision on or before 3.7.2009. University even took up the matter in appeal. Ultimately, Ext.P4 decision was communicated to the petitioner and it is this decision taken by the University as evidenced by Ext.P4 W.P.(C).19599/2009 & Connected Cases 9 that has been challenged in the writ petition. 8. Nine reasons given in Ext.P4 to deny continuance of affiliation or deny a grant of affiliation for the year 2009- 10 have been challenged by the petitioner. To avoid repetition, I will refer to these contentions after narrating bare facts relating to the Medical Institutions. 9. The petitioner in W.P.(C).19591/2009 is a Medical institution. The contentions mentioned in relation to the petitioner in W.P.(C).19599/2009, as regards the alleged steps taken by the University against the Christian Management institutions, have been repeated by the petitioner in this case also. I will avoid repetition of the same for the sake of brevity. But as stated at the outset, this Court had in Jubilee Mission Medical College and Research Institute v. University of Calicut (2008 (4) KLT 966) declared that the Medical institutions in these cases shall be treated as having had affiliation for the years 2007-08 and 2008-09 and had further directed that the results of the examinations taken by the students of W.P.(C).19599/2009 & Connected Cases 10 the petitioner's colleges shall be published. This was affirmed by the Division Bench by Ext.P10 judgment dated 13.3.2009. Petitioner was also served with a copy of the decision taken by the Syndicate of the Calicut University on 18.6.2009 only after it had approached this Court and an order was issued in that regard. Petitioner has challenged each one of the reasons given in the said decision taken on 18.6.2009 (Ext.P5) for denying it affiliation for the year 2009-10. 10. I consider it advantageous to categorise common issues which arise for consideration in these four cases together and then deal with the issues which are peculiar to Medical institutions on one hand and the Engineering Colleges on the other. Reasons given by the University to deny grant of provisional affiliation for the year 2009-10 are the following:- (i). The application for affiliation is not accompanied by the permission/approval by the AICTE (or MCI as the case may be) for extension of approval for W.P.(C).19599/2009 & Connected Cases 11 continuation of the course for the year 2009-10. (ii). The continued provisional affiliation for the year 2006-07 was granted with a specific condition that “the selection and admission shall be made 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” and the Management has violated the above condition. (iii). The Management violated the provisions contained in statute 9(f) of Chapter 23 of the Calicut University First statutes, 1977, (hereinafter referred to as the 1st statute). The Management violated the undertaking given by them to the University at the time of grant of affiliation to the effect that they will faithfully follow the provisions of the University Act, statutes, ordinances, regulations and directions issued by the University from time to time and also W.P.(C).19599/2009 & Connected Cases 12 admit only such students who are eligible as per the regulations of the University. (iv). These Management violated rules and relevant provisions of the ordinances of the University/Government and AICTE (or MCI as the case may be) in the matter of selection and admission of students and collection of tuition fee and other fees leviable from students. (v). The teachers are selected and appointed not in terms of the University Act, statutes and regulations, which is a condition mandated while granting recognition. 11. I will deal with the two reasons given in relation to the Medical colleges and one aspect which is peculiar to Sahrdaya College of Engineering, after I deal with the common issues. 12. But before I deal with the above contentions, it would only be appropriate to deal with a preliminary objection raised by Mr.P.C.Sasidharan as regards the W.P.(C).19599/2009 & Connected Cases 13 maintainability of the writ petitions. 13. All these writ petitions have been filed on 13.7.2009 and they challenge the decision taken by the Syndicate of the Calicut University on 18.6.2009 (Ext.P4 in the case of Engineering Colleges and Ext.P5 in the case of Medical institutions). It is their contention that the said decision itself was not supplied to them in spite of their request and they had to approach this Court to get a copy of the decision taken by the Syndicate on 18.6.2009. This Court had directed the University to supply a copy of the said decision taken by the Syndicate on 18.6.2009, on or before 3.7.2009. It is the case of the petitioners that the said direction itself was taken up in appeal before a Bench of this Court. It was ultimately only thereafter, that the decision was actually communicated. As stated above, the writ petitions were filed on 13.7.2009 and they came up for admission on the same day. The Standing counsel was requested to get instructions and accordingly, they were posted on 16.7.2009. On the said day, the counsel for the University submitted that a short counter affidavit is being filed. Writ petitions were therefore directed to be posted W.P.(C).19599/2009 & Connected Cases 14 on 20.7.2009. On the very same day, the counsel for the University had also submitted that the standing committee of the Syndicate met on 16.7.2009 and the Syndicate was scheduled to meet on 18.7.2009. He further submitted that it will be open to the petitioners to depute an authorized representative to make a representation to the Syndicate, if they are advised to do so and such representation shall be considered by the standing Committee and the views of the Committee shall also be placed before the Syndicate scheduled to meet on 18.7.2009. This Court had made it clear that the decision, if any, taken by the Syndicate after a reference to the representation to be submitted by the petitioners, as permitted by this Court would also be ascertained by the learned Standing Counsel for the University and brought to the notice of this Court by 20.7.2009. This Court had permitted the petitioners to file a representation and meet the Registrar on 17.7.2009. But it was further made clear that the representation if any, by the petitioners and a consideration of the same by the standing Committee by the Syndicate, shall be without prejudice to the contentions of either side in the writ petition. The W.P.(C).19599/2009 & Connected Cases 15 Syndicate had then taken another decision on 18.7.2009 and an order was thereafter issued by the University on 22.7.2009 produced as Ext.R1(e) in W.P.(C).19599/2009 (and in other cases as well). Ext.R1(e) reflects a unanimous resolution of the Syndicate that the continuance of the provisional affiliation of the colleges need not be granted but also refers to the decision taken by the Syndicate on 18.6.2009, which has been impugned in these writ petitions. Representations were filed by the petitioners as permitted by this Court on 16.7.2009 as well. It is contended by the learned counsel for the University that ultimate decision by the University is that which is reflected in Ext.R1(e) dated 22.7.2009. There is no challenge to the said decision in these writ petitions. What is challenged in these writ petitions, he contends, is only an unconfirmed minutes of the meeting of the Syndicate held on 18.6.2009. This decision by itself does not have any consequences. The substance of the contention taken is that the writ petition does not mount a challenge, as it were, against the University order dated 22.7.2009 and therefore, unless such a decision is challenged and the challenge is upheld, no direction can W.P.(C).19599/2009 & Connected Cases 16 be issued to the University in the matter of grant of affiliation as sought for by the petitioners. 14. As I stated, this contention was pursued vehemently by the learned counsel for the University. Therefore, I have anxiously considered the same. I am afraid that the contention is a technical one and is essentially related to the form and not the substance of the issues which are germane for consideration. 15. The minutes of the meeting of the Syndicate on 18.6.2009 does not show that it is an unconfirmed or a provisional decision. Reasons given by the Syndicate of the University to deny grant of affiliation for these institutions for the year 2009-10 are spelt out in the minutes of the decision taken on 18.6.2009 which, indisputably, has been challenged in these writ petitions. One of the grounds that has been raised in this writ petition is rested on the alleged violation of the principles of natural justice. Apparently, the submission made on behalf of the University on 16.7.2009 and recorded in the order passed on the said date, enabling as it were a W.P.(C).19599/2009 & Connected Cases 17 representative of the institution to make a representation against the decision of the Syndicate taken on 18.6.2009 must have been made realising the gravity of the contention that the decision taken on 18.6.2009 was in violation of the principles of natural justice and also realising the possibility of the decision being set at naught by this Court on judicial review. The petitioners had made a detailed representation against each one of the grounds, as permitted by this Court. All that they required at that point of time was an opportunity to pursue the contention that the decision taken by the University was, among others in violation of principles of natural justice. In substance, the grounds for denying affiliation as contained in Ext.R1(e) dated 22.7.2009 is only a reiteration of what has already been expressed on 18.7.2009. Significantly, the Syndicate which met on 18.7.2009 had only confirmed its minutes of the meeting held on 18.6.2009. Petitioners had to approach this Court for even a copy of the decision taken by the Syndicate and it is difficult to ignore the irrefutable fact that the University had even challenged an order passed by this Court to give a copy of the decision to the petitioners. Be W.P.(C).19599/2009 & Connected Cases 18 that as it may, these writ petitions have been filed on 13.7.2009, after a receipt of the copy of the decision taken on 18.6.2009. The grounds taken for denying affiliation are being considered on merits and the decision making process of the University has also been subject to judicial review. This Court exercising powers under Article 226 of the Constitution of India is primarily concerned with the substance of the contentions of the parties and not with technical aspects which really do not have a bearing on the merits or demerits of the decision that is subjected to judicial review. I find no substance in the preliminary objection raised on behalf of the respondents. 16. I shall now consider the legality and correctness of the reasons given by the University, as contained in the minutes of the meeting of the Syndicate held on 18.6.2009. I should again take note of the fact that the same reasons have been repeated in Ext.R1(c) proceedings issued by the University on 22.7.2009. I shall first deal with those issues which are common to all the four institutions and then deal with the individual issues W.P.(C).19599/2009 & Connected Cases 19 applicable to the Medical institutions or the Engineering Colleges as the case may be. 17. The first common ground which has been stated by the University is that the application for affiliation is not accompanied by the permission/approval of the AICTE/MCI for extension of approval for continuation of the course for the year 2009-10. 18. This issue has different connotations in the case of Engineering Colleges on one hand and the Medical institutions on the other. Therefore, I will deal with this issue in the context of the statutory provisions that are applicable to Engineering Colleges and Medical Institutions. 19. But first I think it is appropriate to take note of the contentions raised by the learned counsel for the petitioner that literally understood, the reason put forth by the University, in this context namely that the application for affiliation was not accompanied by permission/approval by the AICTE/MCI has no legitimate W.P.(C).19599/2009 & Connected Cases 20 legs to stand on. Reference is made to Chapter 23 of the University First Statutes and the provisions contained therein dealing with the submission of an application for affiliation. The provisions contained in the First Statutes, Chapter 23, essentially are relatable to the process to be undertaken in the matter of obtaining affiliation from the University for the first time. The concept provisional affiliation is not ex facie discernible from the statutory regulations. But it cannot be gainsaid that the University has the power to grant affiliation for a limited period in the first instance and then renew the same from year to year. It is accordingly that the provisional affiliation was granted in the case of these colleges for one year in the first instance and the said provisional affiliation was extended till the year 2006-07. In the case of Medical colleges, this Court had in the case of Jubilee Mission Medical College and Research Institute v. University of Calicut (2008 (4) KLT 966) declared that the Colleges must be deemed to have provisional affiliation for the years 2007-08 and 2008-09. In the case of Engineering Colleges, a similar declaration was granted W.P.(C).19599/2009 & Connected Cases 21 by this Court, with a slight difference that the period of provisional affiliation was directed to be operative till the University takes a decision. In substance, the direction issued by this Court is operative uniformally as regards all the four colleges. 20. I find force in the submission made by the leaned counsel for the petitioner that there is no prescribed format for an application for extension of provisional affiliation nor is their any statutory provision which compells the applicant to produce a copy of approval granted by the Central Authority namely the AICTE/MCI as the case may be, for the year in relation to which extension of affiliation is sought, along with the application to be considered by the University. If that be so, then the reason given by the University in this regard namely that the application for affiliation was not accompanied by permission/approval by the AICTE for the year 2009-10 is misconceived. It has no basis in the statutory provisions regulating the actions of the University in this regard. W.P.(C).19599/2009 & Connected Cases 22 21. Learned counsel for the University submits that in substance the objection is that there is no material on record to show that the Central Regulatory Body has granted permission/approval for the