IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 WP(C).No. 24398 of 2008(D) ----------------------------------------- PETITIONER(S): ------------------------ DIRECTOR, JUBILEE MISSION MEDICAL COLLEGE, TRICHUR. BY MR.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE BY ADV.MR.TONY GEORGE KANNANTHANAM RESPONDENT(S): ---------------------------- 1. THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENJIPPALAM, MALAPPURAM DISTRICT. 2. THE CONTROLLER OF EXAMINATIONS, UNIVERSITY OF CALICUT, THENJIPPALAM, MALAPPURAM DISTRICT. R1 & R2 BY ADV. MR.P.C.SASIDHARAN, SC, CALICUT UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2009 ALONG WITH WPC NO. 24549 OF 2008, THE COURT 05/02/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.24398/2008 D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER DTD. 17/04/2006 ISSUED FROM THE DEPUTY REGISTRAR OF CALICUT UNIVERSITY. EXT.P2: COPY OF NO OBJECTION CERTIFICATE DTD. 4/03/2006 OF ..DO... EXT.P3: COPY OF NO OBJECTION CERTIFICATE DTD. 27/04/07 OF ...DO.... EXT.P4: COPY OF TIME TABLE FOR THE FINAL MBBS PART I, EXAMINATION. EXT.P5: COPY OF TIME TABLE FOR THE FIRST PROFESSIONAL EXAM. EXT.P6: COPY OF COMMUNICATION DTD. 2/08/2008 FROM THE 2ND RESPONDENT. EXT.P7: COPY OF LETTER DTD. 11/08/2008 FROM THE PRINCIPAL OF PETITIONER'S INSTITUTE. EXT.P8: COPY OF NOTIFICATION DTD. 26/07/2008 ISSUED FROM THE JOINT REGISTRAR IN-CHARGE OF CONTROLLER OF EXAMINATIONS. EXT.P9: COPY OF NOTIFICATION DTD. 21/01/2009 ISSUED FROM THE CONTROLLER OF EXAMINATIONS OF CALICUT UNIVERSITY. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE LETTER DTD. 25/09/2008. EXT.R1(B): COPY OF THE PRESS RELEASE DTD. 3/09/2008. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC,J. ----------------------------- W.P.(C).Nos.24398 & 24549 OF 2008 ----------------------------- Dated this the 5th day of February, 2009. JUDGMENT The issues raised in these writ petitions are identical and therefore these petitions were heard and disposed of by this common judgment. 2. For the sake of convenience, I shall refer to the facts as are pleaded in WP(C).No.24398/08. 3. The petitioner is the Director of Jubilee Mission Medical College, Trissur. The College was established during 2003-04 and the respondent University had granted provisional affiliation on an year to year basis. Ext.P1 is the order dated 17.4.2006, issued by the respondent University ordering continuation of provisional affiliation for the year 2005-06. Exts.P2 and P3 are the certificates issued by the University stating that they have no objection for granting continuation of provisional affiliation, for the years 2006- 07 and 2007-08, subject to the approval of Government of WP(c)No.24398/08 2 India, Government of Kerala and Medical Council of India. 4. Petitioner submits that by Exts.P4 and P5 issued on 2.8.2008, the University published the timetable for the final MBBS Part-I examination and first professional MBBS (New Scheme) examination. As per the schedule thus published, the final MBBS Part-I examination was to commence on 18th August, 2008 and the first professional MBBS Examination was to commence on 28th August, 2008. 5. It is stated that on 2.8.2008 itself the University issued Ext.P6 requiring the petitioner to forward the qualifying certificates of the first MBBS students and the order of continuation of provisional affiliation. On receipt of Ext.P6, the college issued Ext.P7 reply dated 11.8.2008. In so far as the direction in Ext.P6 to forward the qualifying certificates of the first MBBS students is concerned, it is stated in Ext.P7 that “the Original Qualifying certificates/pass certificates of 55 students had already been submitted to your office on 24th April, 2008 along with their applications for recognition of examination of other Universities/bodies.” It is also stated that the WP(c)No.24398/08 3 certificates of 55 students already submitted to the second respondent office may be incorporated along with the first MBBS applicants. 6. In so far as the production of the order of continuation of provisional affiliation, it is stated in Ext.P7 that the application along with the fee for provisional affiliation for the year 2007-08 was submitted on 17th March, 2007 and that for the year 2007-08, the application was submitted on 10.7.2007. It is also stated that the application for provisional affiliation for the year 2008-09 was submitted on 22.1.2008 and that the applications are pending with the University in spite of the repeated reminders. On this basis the University was requested to make necessary arrangements for the issue of hall tickets to the students for the ensuing MBBS examination. 7. Petitioner submits that they had information that the University will not be sending hall tickets and therefore they filed this writ petition on 12.8.2008 with the following prayers. WP(c)No.24398/08 4 “(a). To issue a writ of mandamus or other appropriate order or direction to direct the respondents to permit the students of the petitioner's college to appear for the University exams commencing from 18.8.2008 onwards. (b). To issue a writ of mandamus or other appropriate order or direction to direct the respondents not to prevent or interfere with the Ist year students of the petitioner's college to appear for their exams, commencing from 18.8.2008 onwards, (c). To declare that the students admitted in petitioner's college are entitled to purse their studies for Medicine in petitioner's college without any interruption from the University. (d) To issue a writ of mandamus or other appropriate order or direction to direct the Ist respondent to extend the affiliation granted to the petitioner, for the year 2007-08 and thereafter.” 8. On 14.8.2008, this court passed an interim order directing the University to permit the students to write the examinations provisionally and subject to the result of the writ petition. It is stated that, accordingly the students appeared for the examinations. Although the University published the results of the first year MBBS students on 15.12.2008, the results of the students of the petitioner's college was withheld for the reason that the College did not have affiliation and that it did not have recognition WP(c)No.24398/08 5 granted by the Medical Council of India. A copy of the University notification dated 15.12.08 was made available in court, with copy to the counsel for the University. Along with I.A.No.1243/09, the petitioner has also produced Ext.P9, notification dated 21.1.2009 publishing the result of final MBBS Part-I examination of August, 2008. It is stated in Ext.P9 that the result of the candidates registered at the petitioner's college will be published only after the final disposal of this writ petition, 9. As already noticed, the two reasons specified by the University for not publishing the results of the students of the Petitioner's college are that the college did not have continued provisional affiliation and that the college did not have the recognition granted by the Medical Council of India. In addition to these two contentions, in the counter affidavit filed, the University has also raised a contention that, ineligible students have been admitted and that the eligibility of the students is a matter which is yet to be verified by the University. According to the University, the reason for not verifying WP(c)No.24398/08 6 the eligibility of the students admitted by the petitioner college is that the University is bound to verify the eligibility only in respect of the students admitted by the colleges which are affiliated to it. It is therefore contended that since the college is not an affiliated college, the University is not bound to verify the eligibility of the students admitted. 10. As far as the issue whether the Petitioner college enjoys provisional affiliation granted by the University is concerned, in view of the judgment of this court in Director, Jubilee Mission Medical College and Research Institute V. University of Calicut (2008(4) KHC 885), that issue is not open for a further deliberation. In the aforesaid judgment this court has already held that the petitioner having applied for affiliation it was the duty of the University to have passed orders on the application for affiliation and that until such orders are passed and communicated, the provisional affiliation already granted will continue to be effective. Therefore, I must necessarily hold that the Petitioner college enjoys provisional WP(c)No.24398/08 7 affiliation, for the academic years including 2008-09. 11. The other issue is whether the college has been given approval by the Medical Council of India. In paragraph 36 of the writ petition, it has been specifically averred that the petitioner has been given a copy of the communication of the Government of India on the recommendation of the Medical Council of India that approval has been extended for this year also. This contention is not contraverted in the counter affidavit filed by the University and therefore I must accept the plea that the Petitioner college has been given approval by the Medical Council of India. 12. Now what remains is the issue regarding the eligibility of the students admitted by the Petitioner college. As already noticed, in view of the judgment of this court in Director, Jubilee Mission Medical College and Research Institute V. University of Calicut (2008(4) KHC 885, the petitioner college enjoys provisional affiliation even during this academic year. This court has only declared the law and therefore legally the college always WP(c)No.24398/08 8 enjoyed the benefit of provisional affiliation. If that be so, the University always had the obligation to verify the eligibility of the students and therefore there is failure on the part of the University in this behalf. In Ext.P7 referred to above, the Petitioner has specifically stated that all certificates in relation to 55 students have been submitted to the University on 24th April, 2008. Therefore, I cannot find fault with the Petitioner on this count in any manner. 13. Further, it is the specific case of the petitioner that, although the yardstick for assessing the eligibility of the students were the same as those adopted by the other self financing colleges affiliated to the Calicut University itself, without any hesitation, the University has declared the results of all students of those other colleges. It is stated that there is absolutely no distinguishing factor justifying the different standard adopted by the University, in so far as the Petitioner alone is concerned. 14. Yet another point that is urged by the Senior Counsel for the Petitioner was that in the notification dated 15.12.2008 publishing the results of the first year WP(c)No.24398/08 9 students and also in Ext.P9 the University has not stated that the ineligibility of the students or the non-verification of the eligibility of the students as the reason for withholding the results. On the other hand in the notification dated 15.12.2008, the only reason stated is want of affiliation by the University and recognition by the Medical Council of India. 15. As already noticed, when the University had with it the certificates to assess the eligibility of the students and delay has been caused by the University in this behalf, and when results of other similarly situated students have been published, I see absolutely no justification for the University's refusal to publish the results of the students in these cases. Therefore the University shall publish the results of the examinations held pursuant to Exts.P4 and P5 examination schedule forthwith. 16. In so far as WP(c).No.24549/08 filed by the Amala Institute of Medical Science is concerned, their case is similarly situated in all respects. However, as per Ext.R1(a) communication issued by the Medical Council of WP(c)No.24398/08 10 India, the Medical Council of India is seen to have directed the college to discharge the 18 students mentioned therein. It would appear that on receipt of the said communication the College moved the Apex court and obtained order dated 26.8.2008 in I.A. No.11-13 in Civil Appeal No.2846/07, which reads as under. It was stated by learned counsel appearing on behalf of the applicants that the examinations are scheduled to be held from August 28, 2008 ie., day after tomorrow. On the facts and in the circumstances, in our opinion, ends of justice would be met, if, as an interim measure, the 18 students whose names have been mentioned in the letter of Medical Council of India dated July 2003, 2008 (Annexure-H), be allowed to appear in the examination scheduled to be held on August 28, 2008 subject to final outcome as well as further orders of this court. It is also clarified that allowing to appear at the examination will not create any equity in favour of these students and they will not claim any benefit on such basis.” 17. It was on the strength of the said interim order that the 18 students appeared for the examination. In view of the conditions imposed by the Apex Court in the aforesaid order, if the results are to be declared or any additional relief is to be claimed, the course open to the petitioner is to move the Apex Court itself and to obtain appropriate orders. Therefore, as far as these 18 students are concerned, this court will not be justified in granting WP(c)No.24398/08 11 any relief. However, the case of the other students are concerned, they are entitled to succeed. 18. Accordingly, the writ petitions are disposed of directing the University to declare the results of the students of the petitioner medical colleges, who have appeared for the examination pursuant to Exts.P4 and P5 examination schedules except those covered by Exts.R1(a) order dated 26.8.2008, produced in WP(c).No.24549/08.. This shall be done forthwith. It is made clear that this judgment will not stand in the way of the University in verifying the eligibility of the students and University will be free to call for any additional documents from the colleges for this purpose. Having regard to the fact that the students have already lost considerable time, for no fault of their's, I also order that, if results are not published as above, the students will be permitted to pursue their studies in the petitioner colleges from the 12th of February, 2009, subject to other regulations of the respondent University. WP(c)No.24398/08 12 Writ Petitions are disposed of as above. (ANTONY DOMINIC) JUDGE vi/ The words “pursuant to Exhibits P4 and P5” occurring in the 4th line of paragraph 18 (page 11) of the judgment dated 05/02/2009 are corrected and modified as “pursuant to Exhibits P4, P5 and P8, in WP(C) No. 24398/2008” as per order dated 25/02/2009 in I.A No. 2847/2009. Registrar (Judicial)