IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19599 of 2009(T)
1. THE SAHRDAYA COLLEGE OF ENGINEERING &
... Petitioner
Vs
1. THE UNIVERSITY OF CALICUT,
... Respondent
2. THE VICE CHANCELLOR,
For Petitioner :SRI.KURIAN GEORGE KANNANTHANAM (SR.)
For Respondent :SRI.P.C.SASIDHARAN, SC, CALICUT UTY.
The Hon'ble MR. Justice V.GIRI
Dated :21/08/2009
O R D E R
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 continuance of the
courses in question, for the year 2009-10. The contention
is therefore, one qua the substance of the matter and not
regarding the form. I have proceeded to consider the said
contention on merits.
22. In so far as the Engineering colleges are concerned,
I will refer to the documents placed on record in the case
of W.P.(C).19599/2009 and the same would apply in the
case of the other Engineering college also. Ext.R1(a)
produced by the University is the extension of approval
granted to the petitioner by the AICTE for the year 2007-
08. The period of approval granted therein is 2007-08.
Ext.P8 produced along with the reply affidavit is a
communication from the AICTE addressed to the Principal
Secretary to Government, Higher Education Department
intimating the extension of approval by the Council to the
petitioner/College for the year 2008-09. The said order of
approval, Ext.P8, contemplates the institutions filing a
W.P.(C).19599/2009 & Connected Cases
23
compliance report with the requisite processing fee every
year by the 31st of August irrespective of the period of
approval. It is further stated that the approval is subject
to rectification of the observations/deficiencies/specific
conditions by 31st of August, 2008. According to the
petitioner, the compliance report was forwarded by it to
the AICTE within the time stipulated and the approval was
extended for the year 2009-10 also and this fact is
evidenced by the information posted by AICTE in its
website titled “status of approval for AICTE approved
Engineering and Technological institutions for the year
2009-10”. Both the Engineering Colleges are included in
the ‘status information’ posted by the AICTE in its website
and the information relates to the courses which are
approved for the institution in question, along with the
approved intake for the year 2008-09 and the approved
intake for the year 2009-10. It is the case of the
petitioner pleaded in the writ petition that an extension of
the order of approval for the year 2009-10 in the printed
form has not been issued to any one of the approved
institutions and that it will normally be issued only in
May-June-July. It is further asserted therein that the
W.P.(C).19599/2009 & Connected Cases
24
extension of the approval, will be evidenced by the
information posted by the AICTE in its website and a
physical copy of the said information downloaded from the
website was lated produced by the petitioner as Ext.P5
and it is to this, I have made a reference. Materials on
record do not suggest any ambiguity as regards the
existence of current approval by the AICTE.
23. Mr.P.C.Sasidharan submits that the University is not
bound to take note of the information allegedly posted by
the AICTE in its website and it is entitled to insist that an
order similar to Ext.R1(a) or Ext.P8 as the case may be,
for the year 2009-10 should be produced by the institution
either along with the application for extension of approval
or at least before the University took a decision in this
regard. I am not impressed with the submission nor is
such requirement spelt out by the statute, which governs
the processing of the application for affiliation. At any
rate, the question is whether there is in existence,
current approval by the AICTE, qua the institution in
question, for the courses which are legitimately offered
therein. Indisputably there is an order of approval in the
W.P.(C).19599/2009 & Connected Cases
25
printed form till and inclusive of the year 2008-09. There
is evidence of approval having been extended by the
AICTE for the year 2009-10, signified by the information
posted by the said authority in its website. University has
no case that the said information is incorrect or that
the information available from the website of AICTE is
wrong or fabricated. In fact, if there is such a suspicion
lurking in the mind of the University, it was always
possible for them to seek a clarification from the AICTE.
I also think it is appropriate to refer to the fact that the
petitioner had, in the notice of hearing submitted as
Ext.R1(c) as permitted by this Court by the interim order
dated 16.7.2009, not only asserted the existence of
current approval by the AICTE for the year 2009-10 but
had also enclosed a physical copy of the information
downloaded from the website along with their hearing
note. There is no assertion by the University that the
information so furnished is wrong and has been so
verified. In the circumstances, the irresistible
conclusion that will have to be legitimately drawn is that
AICTE has approved the petitioner institutions, for the
year 2009-10 as well.
W.P.(C).19599/2009 & Connected Cases
26
24. In so far as the Medical Colleges are concerned, the
statutory framework related to approval of the institution
by the Central Regulatory Body is provided for by the
Medical Council Act and the regulations framed
thereunder. It is apposite to refer to Section 10A and
Section 11 of the Indian Medical Council Act, 1956, in this
regard. Section 10A(1) is relevant and is extracted
herein.
Notwithstanding anything contained in this Act
or any other law for the time being in force –
(a). no person shall establish a medical
college ; or
(b).no medial college shall –
(i). open a new or higher course of
study or training (including a post-
graduate course of study or training)
which would enable a student of such
course or training to qualify himself
for the award of any recognized
medical qualification or
(ii). increase its admission capacity in
any course of study or training
(including a post-graduate course of
W.P.(C).19599/2009 & Connected Cases
27
study or training)
except with the previous permission
of the Central Government obtained
in accordance with the provisions of
this section
25. Thus, a Medical College can be established by a
person only with a previous permission of the Central
Government, obtained in accordance with the provisions
of Section 10A. Sub Section 2 of Section 10 provides that
a person shall, for the purpose of obtaining permission
under Section 10A(1), submit to the Central Government
a scheme in accordance with the provisions of Section
10A(2)(b), and the scheme shall be referred to the
Medical Council which shall then give its
recommendations. Central Government, after obtaining
the particulars as may be considered necessary from the
person or college concerned, either approve or disapprove
the same. If the Scheme is approved, it is then taken as a
permission under Section 10A(1) of the Act. Medical
Council is called upon to consider a scheme and give its
recommendations having regard to the aspects
mentioned in Section 10A.
W.P.(C).19599/2009 & Connected Cases
28
26. Section 11 of the Act deals with recognition of
Medical qualifications granted by Universities or Medical
institutions in India. It reads as follows.
Recognition of medial qualifications granted by Universities or medical institutions in India - The medicalqualifications granted by any University or
medical institution in India which are included
in the First schedule shall be recognized
medical qualifications for the purpose of this
Act.
27. In so far as the Medical institutions in the present
case are concerned, a Scheme submitted by them was
recommended by the Medial Council. Indisputably they
were granted approval, from year to year till and inclusive
of 2008-09. It seems that the 1st batch of MBBS students
from the two medical institutions in question had passed
out in the year 2008. It is on record that a Medical
Council had inspected the two medical institutions in
November 2008 for the purpose of verifying whether an
W.P.(C).19599/2009 & Connected Cases
29
approval can be granted for the award of MBBS degree, to
the students who pass out from the two institutions. The
Council inspector’s report was considered by the
Executive Committee of the Medical Council and their
recommendations are contained in Ext.P7 which reads as
follows.
“I am to state that the General Body of this
Council at its meeting held on 1.3.2009
considered the Council inspectors report (27th
and 28th November 2008) for approval of
Jubilee Mission Medical College & Research
Institute, Thrissur for the award of MBBS
degree granted by Calicut University and the
Council approved the following
recommendations of the Executive
Committee/Adhoc Committee:-
“The members of the Adhoc
Committee appointed by the
Honourable Supreme Court and
of the Executive Committee of the
Council decided to recommend
that Jubilee Mission Medical
College & Research Institute,
Thrissur be approved for the
W.P.(C).19599/2009 & Connected Cases
30
award of MBBS degree granted
by Calicut University, Kottayam
with an annual intake of 100 (One
hundred) students per year.”
In view of the above, I am directed to request
you to issue a necessary notification
recognizing Jubilee Mission Medical College &
Research Institute, Thrissur for the award of
MBBS degree granted by Calicut University on
or after November 2008 in this regard.”
28. What took place thereafter is a procedure which is
provided for under Section 11(2) of the Act and the
recommendations of the Medical Council was accepted by
the Central Government which issued a notification under
the 1st schedule to the Medical Council Act, 1956.
Relevant Extract of the said notification dated 10.6.2009,
Ext.P6, is also extracted herein for ready reference.
In exercise of the powers conferred by sub-
section (2) of Section 11 of the Indian Medical
Council Act, 1956 the Central Government
after consulting the Medical Council of India,
hereby makes the following further
amendments in the First Schedule to the said
W.P.(C).19599/2009 & Connected Cases
31
Act, namely –
In the said First Schedule against “Calicut
University, Calicut” under the heading
‘recognized Medical Qualification’ (in column
(2) and under the heading ‘Abbreviation for
Registration” 9in column (3) the following
shall be inserted namely.
Bachelor Medicine and MBBS
Bachelor of Surgery
This shall be a recognized
medical qualification when
granted by Calicut University,
Calicut on or after November
2008 in respect of students
being trained at Jubilee Mission
Medical College and Research
Institute, Thrissur Kerala.
29. Learned counsel for the petitioner contended that an
yearly approval of the Medical Council, is contemplated
only till such time as steps taken as contemplated under
Section 11(2) of the Act are completed. Once the degree
awarded to the students who passed out from the
institution in question is recognized as a qualification in
terms of Section 11(2) of the Act, then a further renewal
of the approval is not contemplated. This process
evidenced by a notification under Section 11(2) of the Act
W.P.(C).19599/2009 & Connected Cases
32
amounts to what is called as a permanent recognition of
the institution in question. Institutions have been in
existence for the past more than five years and a renewal
of the approval of the institution for each year has been
made by the Central Body after an inspection of the
facilitates. An inspection report will be forwarded every
year. Ultimately an inspection was conducted at the time
when the 1st batch of students took their final year MBBS
examinations and the adequacy or otherwise of the
facilities provided in the institutions was assessed. It is
after referring to the recommendations made by the
Medial Council that the Central Government decided to
approve the degree offered from the institutions in
question. Neither the Medial Council Act nor the
regulations framed thereunder contemplates a further
renewal of the approval of the Medial institution.
30. Mr.Alexander Thomas learned counsel appearing for
the Medial Council of India took me through the
provisions of Medial Council Act and the regulations. He
further submitted that the Medial Council has hitherto
W.P.(C).19599/2009 & Connected Cases
33
treated the issuance of notification of the Central
Government under Section 11(2) of the Act vis-a-vis the
degree offered from any Medial Institution as a final step
in the elaborate procedure undertaken by the statutory
body and the Central Government, in the matter of
according approval for any medial institution.
31. Mr.P.C.Sasidharan on the other hand submits that
neither the Act nor the regulations framed thereunder
contemplates a dispensation with the requirement of an
yearly approval of the Medial Council, for any institution,
even after verifying the adequacy of the facilities that are
provided in the institution and recognition of the degree
offered therein. Admittedly, he submits that the Medial
Council has not renewed the approval of these institutions
for the year 2009-10 and consequently an inference is to
be drawn that the institutions in question are not
supported by a current approval from a Central
Regulatory Body.
32. I have already referred to section 10A(1) and Section
11 of the Act. I have also been taken through the
W.P.(C).19599/2009 & Connected Cases
34
minimum standards, requirements of the Medical College
Regulations, 1999, framed by the Medial Council. On a
reading of the provisions of the Act and the regulations, I
am of the view that the statutory Scheme contemplates an
annual or even more frequent verification and assessment
of the facilities that are provided in any Medical
institution by the MCI which exercises statutory powers.
A notification issued under Section 11(2) of the Act is an
act of considerable import, in the statutory Scheme. A
degree offered by any Medical institution is eligible to be
treated as a recognized qualification only if it is so
specified in the 1st schedule to the Medical Council Act.
Absence of a notification will lead to an inference that a
qualification acquired by a person from the institution in
question is not a recognized medical qualification.
Exts.P6 and P7 will show that the qualification acquired
by the two Medical institutions in question are now
treated as recognized Medical institution within the
meaning of Medical Council Act. The exercise of an
yearly approval of the Medical institution is intended to
see that the institution is equipped with a necessary
infrastructure and prescribed facilities, to enable the
W.P.(C).19599/2009 & Connected Cases
35
students to prosecute their studies therein to acquire a
degree which is otherwise eligible to be treated as a
recognized Medical qualification. Once such an approval
in terms of Section 11(2) is granted and so notified then it
would lead to a statutory inference that the institutions,
which are so included in the First schedule to the Medial
Council Act, do have approval of the Central Regulatory
body, the Medial Council of India and the Central
Government.
33. A further perusal of the Medical Council Act not
only does not offer any contra inference to be derived
from a reading of the said provisions but would only
support the aforesaid conclusion.Of particular significance
is Section 19 of the Medical Council Act which enables
the Central Government to withdraw the recognition, if
the circumstances so warrant. Thus the question of
renewal of recognition or approval, as the case may be,
does not arise in the case of institution, which is notified
in terms of Section 11(2) of the Medical Council Act. The
approval that was required in so far as the institution is
concerned, has preceded the issuance of statutory
W.P.(C).19599/2009 & Connected Cases
36
notification under Section 11(2) of the Act.
34. I am therefore, of the view that the stand taken by
the University with respect to the two Medical
institutions in the instant case that do not have a current
approval of the Medical Council of India for the year 2009-
10 is erroneous and misconceived. The said stand has
been taken on a wrong appreciation of the statutory
scheme.
35. The next ground that has been taken by the
University to deny an extension of affiliation which is
common to all the four institution is that the institutions
had effected selection and admission of students with
regard to the rules and regulations issued in that behalf
by the University. Same contentions had been raised
with regard to these institutions, during the previous
year, ie, 2008-09 and it was pointedly considered by the
Division Bench in W.A.241/2009. It is apposite to refer to
paragraph 18 of the said judgment and it is profitable to
extract the same.
W.P.(C).19599/2009 & Connected Cases
37
“We find considerable force in the submission
of the learned senior counsel for the 1st
respondent. Section 3(1) of Act 17/2004 reads
as follows.
“3. Procedure for admission into self
financing professional colleges (1)
Notwithstanding anything contained in any
law for the time being in force or in any
judgment, decree or order of any Court or
any other authority or in any agreement,
the admission of students into a self
financing professional college shall be
made on the basis of merit as provided in
sub-sections (2) to (6).”
Section 3 of the Act 19/2006 is as follows:
“3. Method of admission in Professional
Colleges or institution:- Notwithstanding
anything contained in any other law for the
time being in force or any judgment,
decree or order of any Court or any other
authority, admission of students in all
professional colleges or institution to all
seats except Non-Resident Indian seats
shall be made through Common Entrance
Test conducted by the State followed by
centralized counseling through a single
W.P.(C).19599/2009 & Connected Cases
38
window system in the order of merit by the
State Commissioner for Entrance
Examinations in accordance with such
procedure as may be specified by the
Government from time to time.
When the Regulations of the University were
substituted by the Act 17/2004, which in turn
was repeated by Act 19/2006 the striking
down of the relevant provisions of Act 19/2006
will not resurrect the Regulations of the
University. Further except making a general
statement that the selection and admission
shall be made only on the basis of the Rules
and Regulations of the University, Government
etc., nothing was specifically stated in Ext.P4.
The University has also never alerted the 1st
respondent’s college, pointing out the method
of selection it should follow, as a condition for
continuance of the affiliation. Further, we
notice that the method followed by the 1st
respondent’s college for admission has, no the
approval of this Court also. The Supervisory
Committee headed by Justice P.A.Mohammed
took actions against the Self financing
Colleges, which followed similar methods for
admission of students. While dealing with
those matters, this Court, in effect, approved
W.P.(C).19599/2009 & Connected Cases
39
the method of admission based on the marks
secured in the entrance examination as well
as the marks secured in the relevant subjects
of the qualifying examination. Though the
learned counsel for the University would point
out that the University was not a party to those
decisions, we notice that the statutory
authority under Act 19/2006, which is to
supervise the admissions, was a party to those
proceedings. In the result, we notice that the
main objection taken against the method of
admission followed by the 1st respondent’s
college cannot be sustained in the absence of
any valid rules governing the field.
36. The findings and observations of the Division Bench
though rendered in the case of Medical institutions would
apply in the case of an Engineering Colleges also. The
aforementioned finding, in my view, is sufficient to hold
that the second ground of rejection put forward by the
university in its decision taken on 18.6.2009 is also
unsustainable. But Mr.Sasidharan has made a reference
to three other sets of regulations, which do not seem to
have been specifically raised before the Division Bench in
W.A.241/09. I therefore, think it is necessary to refer to
W.P.(C).19599/2009 & Connected Cases
40
the said regulations also and the submissions made by
Mr.Sasidharan on the basis of the same for the sake of
completion.
37. Mr.Sasidharan has made a reference to Ext.R1(c)
“regulations”, produced along with the counter affidavit
filed in W.P.(C).19591/2009. Ext.R1(c) is an order issued
by the Joint Academic Branch of the University of Calicut
and issued on 4.3.2009. After referring to the meeting of
two committees convened for the framing of regulations
streamlined to the admissions to the Medical/ Engineering
and related courses, the order goes on to state the
following:-
The Committee recommended that
criteria for selection and method of admission
to merit/management seats for
Medical/Engineering and related courses
conducted by Government/Aided/Self-financing
colleges affiliated to University of Calicut shall
be governed by the rules/regulations framed by
the Commissioner of Entrance Examinations or
other competent authority appointed by the
Government of Kerala in consultation with the
W.P.(C).19599/2009 & Connected Cases
41
University and without contravening with the
stipulation of the apex bodies concerned (viz
Medical Council of India, Dental Council of
India, Indian Nursing Council, Central Council
of Homeopathy, Central council of India
Medicine, All India Council for Technical
Education, Council of architecture etc.) In all
matters related to selection and admission, the
decisions of the University shall be final.
It was further decided that the students
admitted by affiliated colleges violating the
above regulations are not eligible for
registration to University examinations and
contravention of the above regulation shall
lead to withdrawal/suspension of affiliation.”
38. Mr.Sasidharan contends that the University has
therefore, decided that the criteria for selection and
method of admission to merit/management seats in the
Medical/Engineering courses conducted by the
Government/Aided/Self financial colleges affiliated to the
University of Calicut shall be governed by the
rules/regulations framed by the Commissioner of Entrance
Examinations or other competent authority appointed by
the Government of Kerala in consultation with the
W.P.(C).19599/2009 & Connected Cases
42
University and without contravening the stipulation of the
apex bodies. It is contended that Ext.R1(c) would
therefore, indicate that the admission to all self financing
colleges affiliated the University of Calicut shall be
governed by the rules and regulations framed by the
Commissioner of Entrance Examinations in consultation
with the University. It is contended that admittedly the
managements had followed their own procedure. They
have not effected admissions, in the year 2008-09 or the
years earlier, on the basis of a set of regulations framed
by the Commissioner in consultation with the University
and consequently a violation in this regard can be
legitimately taken note of by the University in denying an
extension of affiliation.
39. I am not impressed with the submission for more
than one reason. Firstly, the relevant portion of Ext.R1(c)
which has been extracted above, contemplates
rules/regulations framed by the Commissioner in
consultation with the University to govern the admissions
to the colleges affiliated to the Calicut University. Ext.R1
(c), at best, would reflect a decision that is taken by the
W.P.(C).19599/2009 & Connected Cases
43
University to be governed by a set of rules to be framed by
the Commissioner in consultation with the University,
regulating the admission to the affiliated colleges of the
University. Ext.R1(c) does not refer to any particular set
of regulations which have been framed by the
Commissioner in the manner contemplated therein. Nor
is it a case of the University that Ext.R1(c) has followed a
set of regulations as contemplated therein. Ext.R1(c), at
best, would therefore, be a declaration of the decision that
is taken by the University. It does not contain a set of
rules, otherwise in existence and it does not contain a set
of rules, intended to govern the admissions to Self
financing colleges affiliated to the University. The
petitioners cannot be blamed, for contravening the set of
regulations which are yet to come into existence.
40. I also think it is necessary in this context to refer to
the submission made by the learned counsel for the
petitioner on the basis of certain regulations framed by
the University in the year 2004 and stated to be applicable
to Self financing Engineering colleges. The same called
as Engineering Degree Courses Regulations published by
W.P.(C).19599/2009 & Connected Cases
44
the University of Calicut, and stated to be applicable with
effect from 2004 admissions are produced as Ext.P5
along with W.P.(C).19599/2009. The conditions for
admission to B.Tech Engineering degree courses is
provided in the said regulations which reads as follows:-
Conditions for admission.
Candidates for admission to the B.Tech
(Engineering) Degree Course shall be required
to have passed the Higher Secondary
examinations of state Board of Kerala or
examinations recognized equivalent there to
by the any Universities of Kerala, with 50%
marks in Mathematics and 50% marks in
Physics, Chemistry and Mathematics put
together. Candidates, belonging to Socially
and Educationally Backward Classes with a
total family annual income not exceeding the
limit notified by the Government from time to
time, need only 45% marks in Mathematics
and 45% marks in Physics, Chemistry and
Mathematics put together. Candidates
belonging to scheduled caste and schedules
tribe need only a pass in the qualifying
examination.
They have to quality the Sate Level
W.P.(C).19599/2009 & Connected Cases
45
Entrance Examination conducted by the
Commissioner for Entrance Examination or
state level/National Level Entrance
Examination approved by the Government as
equivalent. They shall also satisfy the
conditions regarding age and physical fitness
as may be prescribed b the University of
Calicut.
41. Learned counsel for the petitioner submits that if
the aforementioned are treated as conditions for
admission prescribed by the University then, the
institutions in question have ensured that the students
who are admitted to their institutions satisfied the
conditions of eligibility. Admissions are effected to the
petitioners institutions on the basis of merit, assessed by
aggregating the marks obtained by the candidate in the
competitive examination conducted by the Commissioner
of Entrance examinations and the marks in the qualifying
examinations. Ranking is on the basis of inter se merit. It
is ensured that the candidate has acquired the minimum
eligible marks both in the entrance test conducted by the
Commissioner as also in the qualifying examinations. I
find force in the submission.
W.P.(C).19599/2009 & Connected Cases
46
42. The procedure followed by the Medical institutions
in the matter of effecting admissions, by determining inter
se merit on the basis of marks obtained by the candidate
in the qualifying examination and in the entrance
examination conducted by the commissioner, has been
referred to by the Division Bench in W.A.241/09 and the
contentions raised by the University that the method of
admission followed by the institution in that regard is
illegal, has been rejected as well.
43. There are two other sets of rules which have been
relied on by Mr.Sasidharan. I will refer to them in the
course of considering the contention that the colleges
have contravened the statutory provisions in effecting
appointment of teachers in the institution.
44. The next ground that has been put forward by the
University in this regard is that the Management have
violated the provisions contained in Statute 9(f) of
Chapter 23 of the Calicut University First statutes, 1977,
and that they have violated the undertaking given by them
W.P.(C).19599/2009 & Connected Cases
47
to the University at the time of granting affiliation 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
admitted only such students who are eligible as per the
regulations of the University. Statute 9(f) of Chapter 23
of the University First Statutes reads as follows:-
9(f) – The Educational Agency/Management
shall give an undertaking 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, in so far as they
are related to the college. The undertaking
shall be endorsed by the Principal of the
college.
45. It is contended that the Managements have violated
statute 9(f) Chapter 23 of the University First statute,
University essentially contends that the Managements
have violated the undertaking given by them at the time of
grant of provisional affiliation. I have already described in
detail, in the preceding paragraph the contention of the
W.P.(C).19599/2009 & Connected Cases
48
University that the petitioner/institutions have admitted
ineligible students. I have referred to the set of
regulations relied on by the University in this regard,
produced as Ext.R1(c). I have also referred to 2004
regulations, referred to by the petitioners, and governing
the admissions to B.Tech degree courses. Apart from the
fact that I have already found that the case put forward
by the University in this regard is unsustainable, I have
also referred to the findings and observations made by the
Division Bench, with regard to the similar contention that
was raised by the University, in the matter of procedure
for admission that have been adopted by the Medical
institutions, in W.A.241/09. It is also significant to note
that the Division Bench has also referred to earlier
judgments of this Court, wherein the procedure for
admission adopted by two of the institutions in question
(which procedure is common to the other institutions also)
and the finding of the Court on an earlier occasion that
the said procedure is merit based and non exploitative. I
also think it is significant that the University has not
specified which clause in the undertaking that has been
contravened and how the procedure of admissions
W.P.(C).19599/2009 & Connected Cases
49
adopted by the Universities has resulted in the
contravention of any binding statutory rules and
regulations.
46. The next common ground for rejection put forward
by the University is that the teachers are selected and
appointed by the petitioners in terms of the University
Act, Statutes and Regulations, which is a condition
mandated while granting recognition. Mr.Sasidharan
refers to Section 2(7) of the University Act and points out
that self-financing college is also a private college
affiliated to the Calicut University. He refers to Clause 6
of the Calicut University First Statutes, which provides
that in the case of a private engineering college,
appointments to the teaching posts, including workshop
staff shall be made by the educational agency only from a
list of persons prepared by the selection committee
according to the rank assigned by the committee. The
constitution of the selection committee is also provided
therein. Reference is also made to section 68A of the
Calicut University Act, which reads as follows:
W.P.(C).19599/2009 & Connected Cases
50
68A. Special provisions in respect of unaided
colleges – Notwithstanding anything
contained in this Act or the statutes,
Ordinances, Regulations, rules, bye laws or
orders –
(a). the scales of pay and other conditions of
service of the teaching and non-teaching staff
of unaided colleges and
(b). the admission and selection and fees
payable by, students in such colleges,
shall be determined, from time to time, by the
Government on the basis of the
recommendations of a committee constituted
by the Government consisting of –
(i).one of the Vice Chancellors of the
Universities in the State, nominated by the
Government;
(ii).the secretary to Government, Higher
Education Department (who shall be the
convenor of the committee); and
(iii).the Director of Collegiate Education.
47. It is contended that, therefore, it is open to the
Government to determine the scales of pay and the other
conditions of teachers and non-teaching staff of unaided
W.P.(C).19599/2009 & Connected Cases
51
colleges. The petitioner institutions are bound by any
lawful directives that may be issued by the Government in
that regard under Section 68(A) of the Act. They have
appointed their own teaching staff without any reference
to the University or the provisions of the Calicut
University Act or the Calicut University First Statutes.
The University is, therefore, entitled to take note of such
statutory provisions and deny extension of affiliation, it is
contended.
48. I have, in an earlier portion of the judgment,
mentioned that I will refer to another set of Rules, relied
on by the learned counsel for the University to
substantiate his contention that the petitioner institutions
have contravened the statutory provisions, both in the
matter of effecting admissions in the institutions and in
fixing the fee and collecting the same from the students.
The question regarding applicability of those sets of rules,
will be considered at this stage since certain aspects
regarding applicability of the first statutes and the first
ordinances, are common.
W.P.(C).19599/2009 & Connected Cases
52
49. In the matter of admissions, learned counsel for the
University had referred to the Calicut University First
Ordinances, 1978 in general and the particular provisions
therein fixing the fee leviable in affiliated colleges as
contained in Chapter 17 of the Calicut University First
Ordinances. It is contended that indisputably, the
petitioners institutions have been collecting fees from the
students far in excess of the fees fixed in the table
contained in chapter 17 of the First Ordinances and that
the First Ordinances interdict a private college affiliated
to the University from collecting fees in excess of what is
fixed therein. Since they have collected fees according to
their own determination they have violated the provisions
of the First Ordinances, it is contended. I have already
extracted Section 68A of the University Act and it is
significant to note that the Section contains a non-
obstante clause. It was brought in by the University Laws
Amendment Act 9/95. Section 68A became part of the Act
on the introduction of Chapter 8A in the Calicut University
Act. It is a special provision in respect unaided colleges.
The definition of a ‘private college’ under Section 2(16) of
the Calicut University Act would include a college
W.P.(C).19599/2009 & Connected Cases
53
maintained by an educational agency and it might include
a self-financing college, which is affiliated to the
University. But, it is relevant to take note of the fact that
the legislature itself, in its wisdom, was of the opinion that
the existing provisions in the statutes, ordinances,
regulations, rules, bye-laws or orders framed under the
Calicut University Act, undoubtedly providing for the
scales of pay and other conditions of service of the staff
and also providing for admissions, selection and fees
payable by students in affiliated colleges cannot be
considered as comprehensive of unaided colleges as such.
This would be patently obvious when one goes by the
scales of pay fixed in Chapter 17 of the University First
Ordinances. It does not require an elaborate process of
ratiocination to note that the scale of fees prescribed
therein would be totally inapplicable to a Self-financing
Professional Colleges. It is relevant to note that even in
the case of merit seats in Government colleges, the scale
of fees now fixed for professional courses would be vastly
higher than the fee fixed in Chapter 17 of the First
Ordinances.
W.P.(C).19599/2009 & Connected Cases
54
50. It is thus, that the legislature thought it necessary to
incorporate Section 68 (A) in the Calicut University Act as
a plenary provision forming the source of power to issue
regulations in the matter of scale of pay and other
conditions of the teaching staff and admission and
selection of staff in unaided colleges. But the power to
frame such rules is conferred on the Government and not
on the University.
51. It is not the case of the University that subordinate
rules have been framed in terms of Section 68(A)of the
Act. Obviously, neither the First Statutes nor the First
Ordinances can be sourced to Section 68A of the Act.
Both of them were enacted well prior to the introduction
of Section 68A in the Act. Nor has my attention been
invited to any amendment to the First Ordinances and
First Statutes, specifically relatable to the Self-financing
Colleges, brought in subsequent to the introduction of
Section 68A of the Act.
52. I am, therefore, of the view that the provisions in the
University First Statutes, as regards the procedure for
W.P.(C).19599/2009 & Connected Cases
55
appointment of teachers in colleges and the provisions in
the First Ordinances fixing the fees payable by the
students in such colleges will have to be treated as
inapplicable to unaided colleges especially Self-financing
Colleges. In that view of the matter, the stand taken by
the University that the petitioners have contravened the
provisions of the Calicut University First Statutes and the
Calicut University First Ordinances in the matter of
appointment of teaching staff in the colleges and in the
matter of effecting admissions and in determining the fees
payable by the students is unsustainable.
53. In this context, I also think it is appropriate to refer to
the submission by the learned counsel for the petitioners
that in the matter of admission and determination of fees,
there are at present no binding statutory regulations
which, as such, regulate the said process in Self-financing
Colleges. The contention is inter alia rested on the fact
that the legislature had brought into force the Kerala Self-
Financing Professional Colleges (Prohibition of Capitation
Fees and Procedure for Admission and Fixation of Fees)
Act, 2004.
W.P.(C).19599/2009 & Connected Cases
56
54. Section 3 of the 2004 Act prescribes the procedure
for admission into self-financing professional colleges and
Section 4 of the same provides for the determination of
the fees. A format completely different from the
procedure for admission in aided colleges was provided
for in the 2004 Act. Both Sections 3 and 4 of the said Act
contains a non-obstante clause, overriding as it were, any
other rules having the force of law, prevailing at that point
of time. It is contended that the legislature had,
therefore, evinced its intention to supersede any rule or
regulation providing for the procedure for admission and
determination of fees in so far as they may apply to Self-
financing Colleges, by the provisions enacted in the
plenary legislation.
55. 2004 Act was repealed by 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 vide Section 20 thereof.
No doubt, certain crucial provisions in the 2006 Act were
W.P.(C).19599/2009 & Connected Cases
57
struck down by a Division Bench of this court in Lisie
Medical and Educational Institution v. State of
Kerala (2007 (1) KLT 409). But the said Act, as such,
survives. The regulations which were prevailing prior to
the 2004 Act, if purported to govern Self-financing
Colleges in the matter of appointment and determination
of fees was either superseded or rendered inapplicable
qua Self-financing Colleges by enactment of 2004 Act and
the said position in law continued by the enactment of
2006 Act. These regulations cannot be considered as
either re-surfaced or resurrected either by reason of the
repeal of 2004 Act or by reason of certain provisions of
the 2006 Act having been declared as unconstitutional.
Both the procedure for admission and determination of
fees made under the University First Statutes and the
First Ordinances are inconsistent with the statutory
format brought about by the 2004 Act and the 2006 Act
and therefore, they cannot be applied to the Self-financing
Colleges. New Rules or Regulations, applicable to Self-
financing Colleges can be framed only in terms of Section
68A of the University Act and that has not been done
W.P.(C).19599/2009 & Connected Cases
58
hitherto.
56. This aspect, though not elaborately, had been
considered by the Division Bench in W.A.No.241/09.
57. I find force in the said submission. The plenary
legislature while enacting 2004 Act was obviously
intending to provide for a different format in the matter of
appointment and fixation of fee in Self-financing Colleges.
May be, the procedure as provided in the said statute was
not brought into vogue. But the effect of the provisions
contained in the said enactment, by operation of law will
have to be accepted. Anything inconsistent with the
format provided under the 2004 Act in the matter of
admission and fixation of fee, in Self-financing Colleges
should be held to be impliedly repealed by the Self-
financing Colleges or superseded by the application of
Doctrine of supersession, which is only another facet of
the Doctrine of implied repeal. The situation continued
with the repeal of the 2004 Act, contemporaneous to the
enactment of 2006 Act. I am, therefore, of the view that
any subordinate rules or regulations framed under the
W.P.(C).19599/2009 & Connected Cases
59
Calicut University Act prevailing prior to the enactment of
2004 Act, should be treated as rendered inapplicable to
the case of Self-financing Colleges, by the enactment of
the 2004 Act and thereafter by the 2006 Act and any such
regulations providing for a different format in the matter
of selection and admissions in Self-financing Colleges,
inconsistent with the plenary law mentioned above, should
be treated as impliedly repealed insofar as Self-financing
Colleges are concerned.
58. Once this position is accepted, it will also have to be
mentioned that the right to establish and run an
institution as Self-financing Colleges has been recognised
and protected under Article 19(1)(g) of the Constitution by
the Constitution Bench of the Supreme Court in TMA Pai
Foundation v. State of Karnataka {2002(8) SCC
481}. The right of such institutions to establish their own
format in the matter of admissions to the colleges and
fixation of fee subject to such method being non-arbitrary,
non-profiteering, fair and reasonable has also been upheld
(para 40, 41 and 43 of the judgment in TMA Pai
W.P.(C).19599/2009 & Connected Cases
60
Foundation).
59. What remains are the grounds of rejection which are
applicable only in the case of Medical Colleges. I will now
proceed to consider the same.
60. It is stated that the Amala Institute of Medical
Sciences, Thrissur and the Jubilee Mission Medical
College, Thrissur, have not prescribed tie up with
Primary/Community Health Centres for training of
students and there are no facilities for training students
for Post Mortem examination as per the Inspection
Commission Report.
61. Learned counsel for the University Mr.Sasidharan
submits that the students of these colleges are taken for
training for Post Mortem to the Bangalore Medical
College. They do not have their own tie up with
Primary/Community Health Centres.
62. Learned counsel for the petitioner submits that the
W.P.(C).19599/2009 & Connected Cases
61
institutions have a Primary/Community Health Centres for
training all students. Training in Post Mortem
Examination is given to the students in a different centre.
In doing so, the institutions have not contravened any of
the conditions for approval given by the Medical Council
of India and therefore, the same cannot constitute a
ground for rejection the extension of affiliation.
63. One aspect which is relevant in considering this
contention, is that the same is related to the existence of
adequate facilities in the Medical institutions, both in the
matter of tie up with the Primary/Community Health
Centres and also in the matter of training students for
Post Mortem examination. It cannot be gainsaid that
these are aspects which obviously falls for scrutiny by the
Medical Council of India. In other words, it is a Central
Regulatory Body, which will have to assess the adequacy
of the facility in the Medical institutions and then take a
decision as to whether the qualification obtained by a
student prosecuting his study from these institution’s can
be recognised for the purpose of Section 11(2) of the
Medical Council of India Act. The opinion given by the
W.P.(C).19599/2009 & Connected Cases
62
Medical Council of India, cannot but be of primordial
importance in this matter. If the University feels that any
specific aspects, regarding the facilities given in these
institutions which are approved by the Medical Council of
India, has not been correctly assessed by the Medical
Council of India, or that there is gross disparity in the
assessment made by the Central Regulatory Body and the
University or that the approval given by the Central
Regulatory Body is vitiated by any fraud practised by the
Institution, exercise by the institution, then it would be
open to them to bring such aspects to the notice of the
Medical Council of India and the seek further action. A
different view as regards the existence of facilities in the
institutions, at variance from the assessment made by the
Medical Council of India and accepted by the Central
Government for the purpose of Section 11(2) of the
Medical Council of India Act cannot afford a justification
for continuing affiliation to be approved institution. I am,
therefore, of the view that the said ground put forth by the
University in justification of its stand is also
unsustainable.
W.P.(C).19599/2009 & Connected Cases
63
64. The next ground, which has been put forth by the
University as regards the Medical Colleges is that the
candidates ineligible for admission as per the Rules of the
University/Government/Medical Council of India were
admitted and permitted to undergo the course of study
and presented for the University Examinations. As rightly
pointed out by the learned counsel for the petitioners, this
aspect has been squarely considered by the Division
Bench in W.A.No.241/09 and found against the University.
The same contention cannot again be resurrected by the
University.
65. What remains is only the contention taken as regards
Sahrudaya College of Engineering to the effect that they
did not co-operate with the Inspection Commission
appointed by the University. I am afraid, this contention
is also not available at this stage in the light of Ext.P6
judgment in W.P.(C)No.17643/08 wherein a learned Judge
of this court has squarely considered the contention and
rejected in the years 2007-08 and 2008-09.
W.P.(C).19599/2009 & Connected Cases
64
66. Since I have undertaken an elaborate discussion of
the issues, I consider it advantageous to summarize my
conclusions as hereunder.
(i). The petitioners in Writ Petition
Nos.19599/2009 and 19600/2009 namely Sahrdaya
College of Engineering & Technology and Jyothi
Engineering College have been approved by the
AICTE for the year 2009-10 as well.
(ii). The stand taken by the University that these
two colleges are not entitled to an extension of
affiliation for the year 2009-10 on the ground that
they do not have a current approval from the AICTE
is untenable and unsustainable.
(iii). The petitioners in Writ Petition
Nos.19591/2009 and 19604/2009, the Amala
Institute of Medical Sciences and Jubilee Mission
Medical College are recognized Medical Institutions
in that behalf by the Medical Council of India and
W.P.(C).19599/2009 & Connected Cases
65
the Central Government. The degrees obtained by
the students from these two institutions are treated
as recognized medical qualifications by the Central
Government in terms of Section 11(2) of the Medical
Council Act, 1956.
(iv). Consequently, there is neither a necessity nor a
provision in the Medical Council Act for an yearly
approval of these two Medical Institutions. The
stand taken by the University that these two
Medical institutions are therefore, not entitled to an
extension of affiliation for the year 2009-10 because
they do not have an approval from the Central
Government for the year 2009-10, is untenable and
unsustainable.
(v). The provisions in the Calicut University First
Statutes providing for the constitution of the
selection committee for appointing teaching staff in
affiliated colleges, are inapplicable to the case of
Self financing colleges affiliated to the University.
W.P.(C).19599/2009 & Connected Cases
66
Consequently the stand taken by the University that
these Institutions have contravened the provisions
of the University statutes or regulations in the
matter of effecting appointment in their colleges is
untenable and unsustainable.
(vi). Ext.R1(c) order dated 4.3.2009 contains only a
decision by the University that the method of
admission to Self financing colleges shall be
governed by the rules/regulations framed by the
Commissioner in consultation with the University.
Ext.R1(c) by itself does not contain the rules and it
can only be treated as a proposal on the part of the
University to frame such rules. No rules have been
framed pursuant thereto.
(vii). The provisions relating to method of
admission and determination of fees as contained in
the Calicut University First Ordinances, 1978, are
inapplicable to the case of Self financing colleges.
W.P.(C).19599/2009 & Connected Cases
67
(viii). The power to frame any rules, providing
for the determination of procedure for admission
and determination of fees in Self financing colleges
is available to the Government in terms of Section
68A of the University Act and the Government has
not framed any rules in exercise of its powers under
Section 68A of the Act so far.
67. The grounds stated by the University as contained in
minutes of the meeting of the Syndicate held on
18.6.2009, for denying extension of the affiliation to the
petitioners are untenable and unsustainable.
68. For all these reasons mentioned above, I am of the
view that the petitioners are entitled to succeed. The
decision taken by the Syndicate of the Calicut University
on 18.6.2009, (Ext.P4 in Writ Petition No.19599/2009), is
quashed. University is directed to extend the affiliation
for all the petitioners, for the year 2009-10 and orders in
this regard shall be passed within two weeks from the
date of receipt of a copy of this judgment. Petitioners are
W.P.(C).19599/2009 & Connected Cases
68
entitled to proceed further in the academic year 2009-10
in consequence of the relief granted herein.
Writ petitions are allowed.
V.GIRI,
Judge
mrcs