{"id":208087,"date":"2009-08-21T00:00:00","date_gmt":"2009-08-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-sahrdaya-college-of-vs-the-university-of-calicut-on-21-august-2009"},"modified":"2016-06-09T17:34:16","modified_gmt":"2016-06-09T12:04:16","slug":"the-sahrdaya-college-of-vs-the-university-of-calicut-on-21-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-sahrdaya-college-of-vs-the-university-of-calicut-on-21-august-2009","title":{"rendered":"The Sahrdaya College Of … vs The University Of Calicut on 21 August, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
The Sahrdaya College Of … vs The University Of Calicut on 21 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 19599 of 2009(T)\n\n\n1. THE SAHRDAYA COLLEGE OF ENGINEERING &\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE UNIVERSITY OF CALICUT,\n                       ...       Respondent\n\n2. THE VICE CHANCELLOR,\n\n                For Petitioner  :SRI.KURIAN GEORGE KANNANTHANAM (SR.)\n\n                For Respondent  :SRI.P.C.SASIDHARAN, SC, CALICUT UTY.\n\nThe Hon'ble MR. Justice V.GIRI\n\n Dated :21\/08\/2009\n\n O R D E R\n                           V.GIRI, J\n                        .......................\n         W.P.(C)s.19599, 19591, 19600 & 19604\/2009\n                        .......................\n            Dated this the 21st day of August, 2009\n\n                         JUDGMENT\n<\/pre>\n
      A decision taken by the Calicut University declining to<\/p>\n
extend the provisional affiliation of the petitioners herein<\/p>\n
have been challenged in these writ petitions.            All the<\/p>\n
petitioners are Private Self Financing Colleges. Petitioners<\/p>\n
in W.P.(C).19599\/2009 & 19600\/2009 are the Managers of<\/p>\n
Self Financing Engineering Colleges and the petitioners in<\/p>\n
W.P.(C)s.19591\/2009      &       19604\/2009        are  Medical<\/p>\n
institutions. All the institutions were granted provisional<\/p>\n
affiliation by the University of Calicut earlier and such<\/p>\n
affiliation was extended thereafter, from year to year. A<\/p>\n
dispute arose regarding extension of the provisional<\/p>\n
affiliation of these institutions for the year 2007-08 and<\/p>\n
2008-09.      This Court had in the case of Medical<\/p>\n
Institutions, vide decision in Jubilee Mission Medical<\/p>\n
College     and Research Institute              v. University of<\/p>\n
Calicut<\/a> (2008 (4) KLT 966) held that the University<\/p>\n
was bound to take a decision regarding extension of the<\/p>\n
provisional affiliation of those institutions before the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  2<\/span><\/p>\n
commencement of the academic year and if                 the<\/p>\n
University does not take a decision in that regard, then,<\/p>\n
the provisional affiliation must be treated as having been<\/p>\n
extended for one more year. Accordingly, it was declared<\/p>\n
that the Medical institutions must be deemed to have had<\/p>\n
a provisional affiliation for the years 2007-08 and 2008-<\/p>\n
09.    Consequential directions on the strength of such<\/p>\n
declaration were also issued.\n<\/p>\n<\/p>\n
2.    The judgment in Jubilee Mission Medical College<\/p>\n
was affirmed by a Division Bench.\n<\/p>\n<\/p>\n
3.    In the case of Medical institutions, the challenge has<\/p>\n
been mounted against the decision taken by the Syndicate<\/p>\n
of the University, on 18.6.2009, declining to extend the<\/p>\n
provisional affiliation for the year 2009-10.<\/p>\n
4.    In so far as the Engineering colleges are concerned,<\/p>\n
a similar view was adopted by a learned Judge in W.P.(C).<\/p>\n
17639\/2008 and Connected Cases and by judgment dated<\/p>\n
23.1.2009, it was inter alia declared that the provisional<\/p>\n
affiliation for those two institutions must be treated as<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  3<\/span><\/p>\n
extended till an order is passed on their applications. It<\/p>\n
was further directed that the appearance of the students<\/p>\n
from those institutions in the examinations pursuant to<\/p>\n
the interim orders passed by this Court, shall be<\/p>\n
regularized and the answer papers shall be valued and<\/p>\n
results declared. The Engineering colleges have also<\/p>\n
challenged the decision taken by the Syndicate of the<\/p>\n
Calicut University on 18.6.2009 declining to grant<\/p>\n
provisional affiliation for the year 2009-10. Since there is<\/p>\n
a commonality in several of the issues that have been<\/p>\n
raised for consideration in these writ petitions, they have<\/p>\n
been taken up together. The common issues shall be dealt<\/p>\n
with in the first instance         and those issues which are<\/p>\n
peculiar to the Engineering Colleges or the Medical<\/p>\n
institutions, as the case may be, shall be dealt with<\/p>\n
separately.\n<\/p>\n<\/p>\n
5.    When these writ petitions came up for admission, I<\/p>\n
heard Mr.Kurian George Kannamthanam, learned senior<\/p>\n
counsel for the petitioners and            Mr.P.C.Sasidharan,<\/p>\n
learned counsel for the University, initially on the<\/p>\n
question of interim relief. It was then felt that more<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  4<\/span><\/p>\n
elaborate submission by the counsel would be required<\/p>\n
and by consent of the counsel, I heard final arguments in<\/p>\n
the writ petitions on several days. Therefore, these writ<\/p>\n
petitions are being disposed of by a common judgment.<\/p>\n
Elaborate submissions have been made by the counsel on<\/p>\n
either side.     Thereafter, at my instance, counsel have<\/p>\n
submitted written submissions and I have considered the<\/p>\n
same as well. I will refer to the bare facts in W.P.(C).<\/p>\n
19599\/2009 filed by the Sahrdaya College of Engineering<\/p>\n
and Technology as typical of the contentions raised by the<\/p>\n
Engineering Colleges and thereafter, I will refer to the<\/p>\n
bare facts in W.P.(C).19591\/2009, which would be typical<\/p>\n
of the contentions raised by the Medical Institution. On<\/p>\n
my request, Sri.Alexander Thomas learned Standing<\/p>\n
Counsel for the Medical Council of India also made<\/p>\n
submissions regarding certain provisions of the Medical<\/p>\n
Council of India Act, 1956.\n<\/p>\n<\/p>\n
6.    The petitioner in W.P.(C).19599\/2009 is the Manager<\/p>\n
of a Self Financing Engineering College under the<\/p>\n
University of Calicut.           It is contended that the<\/p>\n
Government have been making efforts since 2006 to take<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  5<\/span><\/p>\n
over 50% of the seats in Private Self Financing<\/p>\n
Professional Colleges.        According to them, the Kerala<\/p>\n
Professional Colleges or Institutions (Prohibition of<\/p>\n
Capitation Fee, Regulation of Admission, Fixation of Non-<\/p>\n
Exploitative Fee and Other Measures to Ensure Equity<\/p>\n
and Excellence in Professional Education) Act,       2006,<\/p>\n
(hereinafter referred to as the Professional Colleges Act)<\/p>\n
was enacted to take over 50% of the seats in those<\/p>\n
Colleges to be filled up through Government machinery,<\/p>\n
at the rates fixed by the Government.           Substantive<\/p>\n
provisions of the said Act were struck down by a Division<\/p>\n
Bench of this Court in Lisie Medical and Educational<\/p>\n
Institution v. State of Kerala (2007 (1) KLT 409).<\/p>\n
The institution was affiliated to the University of Calicut<\/p>\n
and the affiliation was being extended on an year to year<\/p>\n
basis. But invariably the order of affiliation was given<\/p>\n
only in the course of the academic year and this was the<\/p>\n
case in almost all the institutions. There is a contention<\/p>\n
raised by the Colleges to the effect that the Management<\/p>\n
of   these    institutions     have  been singled  out  for<\/p>\n
discriminatory treatment by the Government since they<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  6<\/span><\/p>\n
come under a common umbrella, viz. the Kerala Christian<\/p>\n
Professional College         Managements Federation. The<\/p>\n
Christian      Managements have resisted the pressures<\/p>\n
exerted by the Government and the University and have<\/p>\n
followed a fair, transparent and merit based method of<\/p>\n
selection.      The Association comprises 10 Catholic<\/p>\n
Engineering Colleges in Kerala (and two Medical Colleges<\/p>\n
which are the petitioners in the other two writ petitions).<\/p>\n
Admissions have been based on a common prospectus<\/p>\n
issued by the Association. Management quota has been<\/p>\n
abolished in these colleges.        Capitation fees has been<\/p>\n
prohibited. It is contended that merit is the only basis for<\/p>\n
the admission and accordingly, the marks obtained by the<\/p>\n
candidates in the Common Entrance Test conducted by<\/p>\n
the State and the marks obtained by the candidates in the<\/p>\n
qualifying examinations have been adopted as the basis<\/p>\n
for determining the         merit.   It is contended that the<\/p>\n
University thereafter,         embarked upon a series of<\/p>\n
measures against the four Colleges coming within their<\/p>\n
jurisdiction and this was because the Associations did not<\/p>\n
yield to Government’s pressure. The students were not<\/p>\n
permitted to appear for the successive exams thereafter,<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  7<\/span><\/p>\n
and thus, a difficulty was faced for several semester<\/p>\n
exams. It was by Ext.P6 judgment, that this Court had<\/p>\n
declared that the Colleges must be treated as having<\/p>\n
provisional affiliation till a contra decision is taken on<\/p>\n
their applications. Though the University filed an appeal<\/p>\n
against the said judgment (Ext.P6), appeals have not been<\/p>\n
admitted, but ordered to be posted for hearing. Petitioner<\/p>\n
had applied for extension of affiliation for 2009-10 on<\/p>\n
20.3.2009. (in the case of the other Engineering College –<\/p>\n
the petitioner in W.P.(C).19600\/09 had applied on<\/p>\n
24.2.2009). Nothing was heard from the University on the<\/p>\n
said application (Ext.R1(b)). The University was bound to<\/p>\n
take a decision on the question of continuance of the<\/p>\n
affiliation or confirmation of affiliation as the case may<\/p>\n
be, by 31.3.2009.       It was not done. The Management<\/p>\n
Association had issued an advertisement in all the editions<\/p>\n
of Malayala Manorama, Deepika and The Hindu, calling<\/p>\n
for applicants to the ten Engineering Colleges coming<\/p>\n
under     the   Management         Association.  A common<\/p>\n
prospectus was issued by these Colleges.          Petitioner<\/p>\n
contends that immediately thereafter, a news item<\/p>\n
appeared in the newspapers warning the public that no<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  8<\/span><\/p>\n
students should take an admission in the colleges which<\/p>\n
do not have continued affiliation.          Names of the<\/p>\n
petitioner’s colleges were not included in the University<\/p>\n
website. News item referred to a press release by the<\/p>\n
University in this regard as evidenced by Ext.P2. It seems<\/p>\n
that the press release came about on the day following<\/p>\n
the issuance of a notification by the Association calling for<\/p>\n
applications from      interested students for admission to<\/p>\n
B.Tech course for the year 2009-10.\n<\/p>\n<\/p>\n
7.    A news item was flashed on 18.6.2009 that the<\/p>\n
petitioner’s College and three other colleges affiliated to<\/p>\n
the Calicut University would have no affiliation for 2009-<\/p>\n
10. Petitioner requested the University to give a copy of<\/p>\n
the decision taken.          It was not done.     Petitioner<\/p>\n
approached this Court for a direction to the University to<\/p>\n
give a copy of the decision taken on 18.6.2009. Ultimately<\/p>\n
this Court issued a direction to the University to give a<\/p>\n
copy of the decision on or before 3.7.2009. University<\/p>\n
even took up the matter in appeal. Ultimately, Ext.P4<\/p>\n
decision was communicated to the petitioner and it is this<\/p>\n
decision taken by the University as evidenced by Ext.P4<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  9<\/span><\/p>\n
that has been challenged in the writ petition.<\/p>\n
8.    Nine reasons given in Ext.P4 to deny continuance of<\/p>\n
affiliation or deny a grant of affiliation for the year 2009-<\/p>\n
10 have been challenged by the petitioner.          To avoid<\/p>\n
repetition, I will refer to these contentions after narrating<\/p>\n
bare facts relating to the Medical Institutions.<\/p>\n
9.    The petitioner in W.P.(C).19591\/2009 is a Medical<\/p>\n
institution. The contentions mentioned in relation to the<\/p>\n
petitioner in W.P.(C).19599\/2009, as regards the alleged<\/p>\n
steps taken by the University against the Christian<\/p>\n
Management institutions, have been repeated by the<\/p>\n
petitioner in this case also. I will avoid repetition of the<\/p>\n
same for the sake of brevity. But as stated at the outset,<\/p>\n
this Court had in Jubilee Mission Medical College and<\/p>\n
Research Institute v. University of Calicut<\/a> (2008 (4)<\/p>\n
KLT 966) declared that the Medical institutions in these<\/p>\n
cases shall be treated as having had affiliation for the<\/p>\n
years 2007-08 and 2008-09 and had further directed that<\/p>\n
the results of the examinations taken by the students of<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  10<\/span><\/p>\n
the petitioner’s colleges shall be published.     This was<\/p>\n
affirmed by the Division Bench by Ext.P10 judgment dated<\/p>\n
13.3.2009. Petitioner was also served with a copy of the<\/p>\n
decision taken by the Syndicate of the Calicut University<\/p>\n
on 18.6.2009 only after it had approached this Court and<\/p>\n
an order was issued in that regard.         Petitioner has<\/p>\n
challenged each one of the reasons given in the said<\/p>\n
decision taken on 18.6.2009 (Ext.P5)        for denying it<\/p>\n
affiliation for the year 2009-10.\n<\/p>\n<\/p>\n
10. I consider it advantageous to categorise common<\/p>\n
issues which arise for consideration in these four cases<\/p>\n
together and then deal with the issues which are peculiar<\/p>\n
to Medical institutions on one hand and the Engineering<\/p>\n
Colleges on the other. Reasons given by the University to<\/p>\n
deny grant of provisional affiliation for the year 2009-10<\/p>\n
are the following:-\n<\/p>\n<\/p>\n
         (i). The application for affiliation is not<\/p>\n
         accompanied by the permission\/approval<\/p>\n
         by the AICTE (or MCI as the case may be)<\/p>\n
         for     extension         of approval    for<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  11<\/span><\/p>\n
        continuation of the course for the year<\/p>\n
        2009-10.<\/p>\n
<\/blockquote>\n
        (ii). The continued provisional affiliation<\/p>\n
        for the year 2006-07 was granted with a<\/p>\n
        specific condition that “the selection and<\/p>\n
        admission shall be made on the basis of<\/p>\n
        the     rules     and      regulations  of the<\/p>\n
        University\/Government and on the basis<\/p>\n
        of     the    directions      issued    by the<\/p>\n
        University\/Government           from   time to<\/p>\n
        time, failing           which the affiliation<\/p>\n
        granted will automatically be cancelled”<\/p>\n
        and the Management has violated the<\/p>\n
        above condition.\n<\/p><\/blockquote>\n
<\/blockquote>\n
        (iii). The     Management         violated the<\/p>\n
        provisions contained in statute 9(f) of<\/p>\n
        Chapter 23 of the Calicut University First<\/p>\n
        statutes, 1977, (hereinafter referred to<\/p>\n
        as the 1st statute).          The Management<\/p>\n
        violated the undertaking given by them<\/p>\n
        to the University at the time of grant of<\/p>\n
        affiliation to the effect that they will<\/p>\n
        faithfully follow the provisions of the<\/p>\n
        University      Act,     statutes,  ordinances,<\/p>\n
        regulations and directions issued by the<\/p>\n
        University from time to time and also<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  12<\/span><\/p>\n
        admit        only such students who are<\/p>\n
        eligible as per the regulations of the<\/p>\n
        University.\n<\/p><\/blockquote>\n
<\/blockquote>\n
        (iv). These Management violated rules<\/p>\n
        and relevant provisions of the ordinances<\/p>\n
        of the University\/Government and AICTE<\/p>\n
        (or MCI as the case may be) in the<\/p>\n
        matter of        selection and admission of<\/p>\n
        students and collection of tuition fee and<\/p>\n
        other fees leviable from students.<\/p>\n<\/blockquote>\n
        (v). The teachers are selected and<\/p>\n
        appointed not in terms of the University<\/p>\n
        Act, statutes and regulations, which is a<\/p>\n
        condition       mandated     while granting<\/p>\n
        recognition.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
11. I will deal with the two reasons given in relation to<\/p>\n
the Medical colleges and one aspect which is peculiar to<\/p>\n
Sahrdaya College of Engineering, after I deal with the<\/p>\n
common issues.\n<\/p>\n<\/p>\n
12. But before I deal with the above contentions,      it<\/p>\n
would only be appropriate to deal with a preliminary<\/p>\n
objection raised by Mr.P.C.Sasidharan as regards the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  13<\/span><\/p>\n
maintainability of the writ petitions.<\/p>\n
13. All these writ petitions have been filed on 13.7.2009<\/p>\n
and they challenge the decision taken by the Syndicate of<\/p>\n
the Calicut University on 18.6.2009 (Ext.P4 in the case of<\/p>\n
Engineering Colleges and Ext.P5 in the case of Medical<\/p>\n
institutions). It is their contention that the said decision<\/p>\n
itself was not supplied to them in spite of their request<\/p>\n
and they had to approach this Court to get a copy of the<\/p>\n
decision taken by the Syndicate on 18.6.2009. This Court<\/p>\n
had directed the University to supply a copy of the said<\/p>\n
decision taken by the Syndicate on 18.6.2009, on or<\/p>\n
before 3.7.2009. It is the case of the petitioners that the<\/p>\n
said direction itself was taken up in appeal before a Bench<\/p>\n
of this Court. It was ultimately only thereafter, that the<\/p>\n
decision was actually communicated. As stated above, the<\/p>\n
writ petitions were filed on 13.7.2009 and they came up<\/p>\n
for admission on the same day. The Standing counsel was<\/p>\n
requested to get instructions and accordingly, they were<\/p>\n
posted on 16.7.2009. On the said day, the counsel for the<\/p>\n
University submitted that a short counter affidavit is being<\/p>\n
filed. Writ petitions were therefore directed to be posted<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  14<\/span><\/p>\n
on 20.7.2009. On the very same day, the counsel for the<\/p>\n
University       had also submitted that the standing<\/p>\n
committee of the Syndicate met on 16.7.2009 and the<\/p>\n
Syndicate was scheduled to meet on 18.7.2009.            He<\/p>\n
further submitted that it will be open to the petitioners to<\/p>\n
depute     an    authorized      representative to make    a<\/p>\n
representation to the Syndicate, if they are advised to do<\/p>\n
so and such representation shall be considered by the<\/p>\n
standing Committee and the views of the Committee shall<\/p>\n
also be placed before the Syndicate scheduled to meet on<\/p>\n
18.7.2009. This Court had made it clear that the decision,<\/p>\n
if any, taken by the Syndicate after a reference to the<\/p>\n
representation to be submitted by the petitioners, as<\/p>\n
permitted by this Court would also be ascertained by the<\/p>\n
learned Standing Counsel for the University and brought<\/p>\n
to the notice of this Court by 20.7.2009. This Court had<\/p>\n
permitted the petitioners to file a representation      and<\/p>\n
meet the Registrar on 17.7.2009. But it was further made<\/p>\n
clear that the representation if any, by the petitioners and<\/p>\n
a consideration of the same by the standing Committee by<\/p>\n
the Syndicate, shall be without prejudice to the<\/p>\n
contentions of either side in the writ petition. The<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  15<\/span><\/p>\n
Syndicate had then taken another decision on 18.7.2009<\/p>\n
and an order was thereafter issued by the University on<\/p>\n
22.7.2009 produced as Ext.R1(e) in W.P.(C).19599\/2009<\/p>\n
(and in other cases as well).           Ext.R1(e) reflects a<\/p>\n
unanimous       resolution     of   the Syndicate that   the<\/p>\n
continuance of the provisional affiliation of the colleges<\/p>\n
need not be granted but also refers to the decision taken<\/p>\n
by the Syndicate on 18.6.2009, which has been impugned<\/p>\n
in these writ petitions. Representations were filed by the<\/p>\n
petitioners as permitted by this Court on 16.7.2009 as<\/p>\n
well.    It is contended by the learned counsel for the<\/p>\n
University that ultimate decision by the University is that<\/p>\n
which is reflected in Ext.R1(e) dated 22.7.2009. There is<\/p>\n
no challenge to the said decision in these writ petitions.<\/p>\n
What is challenged in these writ petitions, he contends, is<\/p>\n
only an unconfirmed minutes of the meeting of the<\/p>\n
Syndicate held on 18.6.2009. This decision by itself does<\/p>\n
not have any consequences.            The  substance of the<\/p>\n
contention taken is that the writ petition does not mount<\/p>\n
a challenge, as it were, against the University order dated<\/p>\n
22.7.2009 and therefore, unless such a decision is<\/p>\n
challenged and the challenge is upheld, no direction can<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  16<\/span><\/p>\n
be issued to the University in the matter of grant of<\/p>\n
affiliation as sought for by the petitioners.<\/p>\n
14. As I stated, this contention was pursued vehemently<\/p>\n
by the learned counsel for the University. Therefore, I<\/p>\n
have anxiously considered the same. I am afraid that the<\/p>\n
contention is a technical one and is essentially related to<\/p>\n
the form and not the substance of the issues which are<\/p>\n
germane for consideration.\n<\/p>\n<\/p>\n
15. The minutes of the meeting of the Syndicate on<\/p>\n
18.6.2009 does not show that it is an unconfirmed or a<\/p>\n
provisional decision. Reasons given by the Syndicate of<\/p>\n
the University to deny grant of affiliation for these<\/p>\n
institutions for the year 2009-10 are spelt out in the<\/p>\n
minutes of the decision taken on 18.6.2009            which,<\/p>\n
indisputably, has been challenged in these writ petitions.<\/p>\n
One of the grounds that has been raised in this writ<\/p>\n
petition is rested on the alleged violation of the principles<\/p>\n
of natural justice. Apparently, the submission made on<\/p>\n
behalf of the University on 16.7.2009 and recorded in the<\/p>\n
order passed on the said date, enabling as it were a<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  17<\/span><\/p>\n
representative of the institution to make a representation<\/p>\n
against the decision of the Syndicate taken on 18.6.2009<\/p>\n
must have been made realising the gravity of the<\/p>\n
contention that the decision taken on 18.6.2009 was in<\/p>\n
violation of the principles of natural justice and also<\/p>\n
realising the possibility of the decision being set      at<\/p>\n
naught by this Court on judicial review. The petitioners<\/p>\n
had made a detailed representation against each one of<\/p>\n
the grounds, as permitted by this Court. All that they<\/p>\n
required at that point of time was an opportunity to<\/p>\n
pursue the contention that the decision taken by the<\/p>\n
University was, among others in violation of principles of<\/p>\n
natural justice. In substance, the grounds for denying<\/p>\n
affiliation   as contained in Ext.R1(e) dated 22.7.2009 is<\/p>\n
only a reiteration of what has already been expressed on<\/p>\n
18.7.2009.      Significantly, the Syndicate which met on<\/p>\n
18.7.2009 had only confirmed its minutes of the meeting<\/p>\n
held on 18.6.2009. Petitioners had to approach this Court<\/p>\n
for even a copy of the decision taken by the Syndicate and<\/p>\n
it is difficult to ignore the irrefutable fact that the<\/p>\n
University had even challenged an order passed by this<\/p>\n
Court to give a copy of the decision to the petitioners. Be<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  18<\/span><\/p>\n
that as it may, these writ petitions have been filed on<\/p>\n
13.7.2009, after a receipt of the copy of the decision<\/p>\n
taken on 18.6.2009.          The grounds taken for denying<\/p>\n
affiliation are being considered on merits         and the<\/p>\n
decision making process of the University has also been<\/p>\n
subject to judicial review. This Court exercising powers<\/p>\n
under Article 226 of the Constitution of India is primarily<\/p>\n
concerned with the substance of the contentions of the<\/p>\n
parties and not with technical aspects which really do not<\/p>\n
have a bearing on the merits or demerits of the decision<\/p>\n
that is subjected to judicial review. I find no substance in<\/p>\n
the preliminary objection raised on behalf of the<\/p>\n
respondents.\n<\/p>\n<\/p>\n
16. I shall now consider the legality and correctness of<\/p>\n
the reasons given by the University, as contained in the<\/p>\n
minutes of the meeting of the Syndicate held on<\/p>\n
18.6.2009. I should again take note of the fact that the<\/p>\n
same     reasons     have     been   repeated in  Ext.R1(c)<\/p>\n
proceedings issued by the University on 22.7.2009. I shall<\/p>\n
first deal with those issues which are common to all the<\/p>\n
four institutions and then deal with the individual issues<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  19<\/span><\/p>\n
applicable to the Medical institutions or the Engineering<\/p>\n
Colleges as the case may be.\n<\/p>\n<\/p>\n
17. The first common ground which has been stated by<\/p>\n
the University is that the application for affiliation is not<\/p>\n
accompanied        by   the     permission\/approval of    the<\/p>\n
AICTE\/MCI for extension of approval for continuation of<\/p>\n
the course for the year 2009-10.\n<\/p>\n<\/p>\n
18. This issue has different connotations in the case of<\/p>\n
Engineering Colleges on            one hand and the Medical<\/p>\n
institutions on the other. Therefore, I will deal with this<\/p>\n
issue in the context of the statutory provisions that are<\/p>\n
applicable     to    Engineering      Colleges and  Medical<\/p>\n
Institutions.\n<\/p>\n<\/p>\n
19. But first I think it is appropriate to take note of the<\/p>\n
contentions raised by the learned counsel for the<\/p>\n
petitioner that literally understood, the reason put forth<\/p>\n
by the University, in this context namely that the<\/p>\n
application for affiliation was not accompanied by<\/p>\n
permission\/approval by the AICTE\/MCI has no legitimate<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  20<\/span><\/p>\n
legs to stand on. Reference is made to Chapter 23 of the<\/p>\n
University First Statutes and the provisions contained<\/p>\n
therein dealing with the submission of an application for<\/p>\n
affiliation. The provisions contained in the First Statutes,<\/p>\n
Chapter 23, essentially are relatable to the process to be<\/p>\n
undertaken in the matter of obtaining affiliation from the<\/p>\n
University for the first time.       The concept provisional<\/p>\n
affiliation is not ex facie discernible from the statutory<\/p>\n
regulations. But it cannot be gainsaid that the University<\/p>\n
has the power to grant affiliation for a limited period in<\/p>\n
the first instance and then renew the same from year to<\/p>\n
year. It is accordingly that the provisional affiliation was<\/p>\n
granted in the case of these colleges for one year in the<\/p>\n
first instance and the said provisional affiliation was<\/p>\n
extended till the year 2006-07. In the case of Medical<\/p>\n
colleges, this Court had in the case of Jubilee Mission<\/p>\n
Medical College             and Research Institute        v.<\/p>\n
University of Calicut<\/a> (2008 (4) KLT 966) declared<\/p>\n
that the Colleges must be deemed to have provisional<\/p>\n
affiliation for the years 2007-08 and 2008-09. In the case<\/p>\n
of Engineering Colleges, a similar declaration was granted<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  21<\/span><\/p>\n
by this Court, with a slight difference that the period of<\/p>\n
provisional affiliation was directed to be operative till the<\/p>\n
University takes a decision. In substance, the direction<\/p>\n
issued by this Court is operative uniformally as regards<\/p>\n
all the four colleges.\n<\/p>\n<\/p>\n
20. I find force in the submission made by the leaned<\/p>\n
counsel for the petitioner         that there is no prescribed<\/p>\n
format for an application for extension of provisional<\/p>\n
affiliation nor is their any statutory provision which<\/p>\n
compells the applicant to produce a copy of approval<\/p>\n
granted by the Central Authority namely the AICTE\/MCI<\/p>\n
as the case may be, for the year in relation to which<\/p>\n
extension of affiliation is sought, along with the<\/p>\n
application to be considered by the University. If that be<\/p>\n
so, then the reason given by the University in this regard<\/p>\n
namely that the application for affiliation was not<\/p>\n
accompanied by permission\/approval by the AICTE for the<\/p>\n
year 2009-10 is misconceived.          It has no basis in the<\/p>\n
statutory provisions regulating the actions of the<\/p>\n
University in this regard.\n<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  22<\/span><\/p>\n
21. Learned counsel for the University submits that in<\/p>\n
substance the objection is that there is no material on<\/p>\n
record to show that the Central Regulatory Body has<\/p>\n
granted permission\/approval for the continuance of the<\/p>\n
courses in question, for the year 2009-10. The contention<\/p>\n
is therefore, one qua the substance of the matter and not<\/p>\n
regarding the form. I have proceeded to consider the said<\/p>\n
contention on merits.\n<\/p>\n<\/p>\n
22. In so far as the Engineering colleges are concerned,<\/p>\n
I will refer to the documents placed on record in the case<\/p>\n
of W.P.(C).19599\/2009 and the same would apply in the<\/p>\n
case of the other Engineering college also.     Ext.R1(a)<\/p>\n
produced by the University is the extension of approval<\/p>\n
granted to the petitioner by the AICTE for the year 2007-<\/p>\n
08. The period of approval granted therein is 2007-08.<\/p>\n
Ext.P8 produced along with the reply affidavit is a<\/p>\n
communication from the AICTE addressed to the Principal<\/p>\n
Secretary to Government, Higher Education Department<\/p>\n
intimating the extension of approval by the Council to the<\/p>\n
petitioner\/College for the year 2008-09. The said order of<\/p>\n
approval, Ext.P8, contemplates the institutions filing a<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  23<\/span><\/p>\n
compliance report with the requisite processing fee every<\/p>\n
year by the 31st of August irrespective of the period of<\/p>\n
approval. It is further stated that the approval is subject<\/p>\n
to rectification     of the observations\/deficiencies\/specific<\/p>\n
conditions by 31st of August, 2008.        According to the<\/p>\n
petitioner, the compliance report was forwarded by it to<\/p>\n
the AICTE within the time stipulated and the approval was<\/p>\n
extended for the year 2009-10 also and this fact is<\/p>\n
evidenced by the information posted by AICTE in its<\/p>\n
website titled “status of approval for AICTE approved<\/p>\n
Engineering and Technological institutions for the year<\/p>\n
2009-10”. Both the Engineering Colleges are included in<\/p>\n
the ‘status information’ posted by the AICTE in its website<\/p>\n
and the information relates to the        courses which are<\/p>\n
approved for the institution in question, along with the<\/p>\n
approved intake for the year 2008-09 and the approved<\/p>\n
intake for the year 2009-10.         It is the  case of the<\/p>\n
petitioner pleaded in the writ petition that an extension of<\/p>\n
the order of approval for the year 2009-10 in the printed<\/p>\n
form has not been issued to any one of the approved<\/p>\n
institutions and that it will normally be issued only in<\/p>\n
May-June-July.      It is further asserted therein that the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  24<\/span><\/p>\n
extension of the approval, will be evidenced by the<\/p>\n
information posted by the AICTE in its website and a<\/p>\n
physical copy of the said information downloaded from the<\/p>\n
website was lated produced by the petitioner as Ext.P5<\/p>\n
and it is to this, I have made a reference. Materials      on<\/p>\n
record do not suggest any ambiguity as regards the<\/p>\n
existence of current approval by the AICTE.<\/p>\n
23. Mr.P.C.Sasidharan submits that the University is not<\/p>\n
bound to take note of the information allegedly posted by<\/p>\n
the AICTE in its website and it is entitled to insist that an<\/p>\n
order similar to Ext.R1(a) or Ext.P8 as the case may be,<\/p>\n
for the year 2009-10 should be produced by the institution<\/p>\n
either along with the application for extension of approval<\/p>\n
or at least before the University took a decision in this<\/p>\n
regard. I am not impressed with the submission nor is<\/p>\n
such requirement spelt out by the statute, which governs<\/p>\n
the processing of the application for affiliation. At any<\/p>\n
rate, the question        is whether there is in existence,<\/p>\n
current approval by the AICTE, qua the institution in<\/p>\n
question, for the courses which are legitimately offered<\/p>\n
therein. Indisputably there is an order of approval in the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  25<\/span><\/p>\n
printed form till and inclusive of the year 2008-09. There<\/p>\n
is evidence of approval having been extended by the<\/p>\n
AICTE for the year 2009-10, signified by the information<\/p>\n
posted by the said authority in its website. University has<\/p>\n
no case      that the said information is incorrect or that<\/p>\n
the   information available from the website of AICTE is<\/p>\n
wrong or fabricated. In fact, if there is such a suspicion<\/p>\n
lurking in the mind of the University,       it was always<\/p>\n
possible for them to seek a clarification from the AICTE.<\/p>\n
I also think it is appropriate to refer to the fact that the<\/p>\n
petitioner had, in the notice of hearing submitted        as<\/p>\n
Ext.R1(c) as permitted by this Court by the interim order<\/p>\n
dated 16.7.2009,        not only asserted the existence of<\/p>\n
current approval by the AICTE for the year 2009-10 but<\/p>\n
had also enclosed a physical copy of the information<\/p>\n
downloaded from the website along with their hearing<\/p>\n
note. There is no assertion by the University that the<\/p>\n
information so furnished is wrong and has been so<\/p>\n
verified.     In the circumstances,         the irresistible<\/p>\n
conclusion that will have to be legitimately drawn is that<\/p>\n
AICTE has approved the petitioner institutions, for the<\/p>\n
year 2009-10 as well.\n<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  26<\/span><\/p>\n
24. In so far as the Medical Colleges are concerned, the<\/p>\n
statutory framework related to approval of the institution<\/p>\n
by the Central Regulatory Body is provided for by the<\/p>\n
Medical     Council    Act     and  the  regulations framed<\/p>\n
thereunder. It is apposite to refer to Section 10A and<\/p>\n
Section 11 of the Indian Medical Council Act, 1956, in this<\/p>\n
regard.     Section 10A(1) is relevant and is extracted<\/p>\n
herein.\n<\/p>\n<\/p>\n
     Notwithstanding anything contained in this Act<\/p>\n
     or any other law for the time being in force –<\/p>\n
     (a). no person shall establish a medical<\/p>\n
     college ; or<\/p>\n
     (b).no medial college shall –\n<\/p>\n
            (i). open a new or higher course of<\/p>\n
            study or training (including a post-<\/p><\/blockquote>\n
            graduate course of study or training)<\/p>\n
            which would enable a student of such<\/p>\n
            course or training to qualify himself<\/p>\n
            for the award of any recognized<\/p>\n
            medical qualification or<\/p>\n
            (ii). increase its admission capacity in<\/p>\n
            any course of study or training<\/p>\n
            (including a post-graduate course of<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  27<\/span><\/p>\n
            study or training)<\/p>\n
            except with the previous permission<\/p>\n
            of the Central Government obtained<\/p>\n
            in accordance with the provisions of<\/p>\n
            this section<\/p>\n
25. Thus, a Medical College can be established by a<\/p>\n
person only with a previous permission of the Central<\/p>\n
Government, obtained in accordance with the provisions<\/p>\n
of Section 10A. Sub Section 2 of Section 10 provides that<\/p>\n
a person shall, for the purpose of obtaining permission<\/p>\n
under Section 10A(1), submit to the Central Government<\/p>\n
a scheme in accordance with the provisions of Section<\/p>\n
10A(2)(b),     and the scheme shall be referred to the<\/p>\n
Medical      Council      which      shall then   give  its<\/p>\n
recommendations. Central Government, after obtaining<\/p>\n
the particulars as may be considered necessary from the<\/p>\n
person or college concerned, either approve or disapprove<\/p>\n
the same. If the Scheme is approved, it is then taken as a<\/p>\n
permission under Section 10A(1) of the Act.         Medical<\/p>\n
Council is called upon to consider a scheme and give its<\/p>\n
recommendations         having      regard to  the  aspects<\/p>\n
mentioned in Section 10A.\n<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  28<\/span><\/p>\n
26. Section 11 of the Act deals with recognition of<\/p>\n
Medical qualifications granted by Universities or Medical<\/p>\n
institutions in India. It reads as follows.<\/p>\n
\n\n\n\n      Recognition        of     medial   qualifications\n\n      granted      by     Universities    or   medical\n\n      institutions      in     India   -  The    medical\n\n<\/pre>\n
      qualifications granted by any University or<\/p>\n
      medical institution in India which are included<\/p>\n
      in the First schedule shall be recognized<\/p>\n
      medical qualifications for the purpose of this<\/p>\n
      Act.\n<\/p>\n<\/p>\n
27. In so far as the Medical institutions in the present<\/p>\n
case are concerned, a Scheme submitted by them was<\/p>\n
recommended by the Medial Council. Indisputably they<\/p>\n
were granted approval, from year to year till and inclusive<\/p>\n
of 2008-09. It seems that the 1st batch of MBBS students<\/p>\n
from the two medical institutions in question had passed<\/p>\n
out in the year 2008. It is on record that a Medical<\/p>\n
Council had inspected the           two medical institutions in<\/p>\n
November 2008 for the purpose of verifying whether an<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  29<\/span><\/p>\n
approval can be granted for the award of MBBS degree, to<\/p>\n
the students who pass out from the two institutions. The<\/p>\n
Council inspector’s report was considered by the<\/p>\n
Executive Committee of the Medical Council and their<\/p>\n
recommendations are contained in Ext.P7 which reads as<\/p>\n
follows.\n<\/p>\n<\/p>\n
     “I am to state that the General Body of this<\/p>\n
     Council at its meeting held on 1.3.2009<\/p>\n
     considered the Council inspectors report (27th<\/p>\n
     and 28th November 2008) for approval of<\/p>\n
     Jubilee Mission Medical College & Research<\/p>\n
     Institute, Thrissur for the award of MBBS<\/p>\n
     degree granted by Calicut University and the<\/p>\n
     Council          approved        the     following<\/p>\n
     recommendations             of    the   Executive<\/p>\n
     Committee\/Adhoc Committee:-<\/p>\n<\/blockquote>\n
              “The members of the Adhoc<\/p>\n
              Committee       appointed  by  the<\/p>\n
              Honourable Supreme Court and<\/p>\n
              of the Executive Committee of the<\/p>\n
              Council decided to recommend<\/p>\n
              that   Jubilee     Mission  Medical<\/p>\n
              College & Research Institute,<\/p>\n
              Thrissur be approved for the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  30<\/span><\/p>\n
              award of MBBS degree granted<\/p>\n
              by Calicut University, Kottayam<\/p>\n
              with an annual intake of 100 (One<\/p>\n
              hundred) students per year.”<\/p>\n<\/blockquote>\n<\/blockquote>\n
     In view of the above, I am directed to request<\/p>\n
     you      to   issue     a    necessary  notification<\/p>\n
     recognizing Jubilee Mission Medical College &<\/p>\n
     Research Institute, Thrissur for the award of<\/p>\n
     MBBS degree granted by Calicut University on<\/p>\n
     or after November 2008 in this regard.”<\/p>\n<\/blockquote>\n
28. What took place thereafter is a procedure which is<\/p>\n
provided for under Section 11(2) of the Act and the<\/p>\n
recommendations of the Medical Council was accepted by<\/p>\n
the Central Government which issued a notification under<\/p>\n
the 1st schedule to the Medical Council Act, 1956.<\/p>\n
Relevant Extract of the said notification dated 10.6.2009,<\/p>\n
Ext.P6, is also extracted herein for ready reference.<\/p>\n
      In exercise of the powers conferred by sub-<\/p>\n
      section (2) of Section 11 of the Indian Medical<\/p>\n
      Council Act, 1956 the Central Government<\/p>\n
      after consulting the Medical Council of India,<\/p>\n
      hereby       makes       the   following   further<\/p>\n
      amendments in the First Schedule to the said<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  31<\/span><\/p>\n
      Act, namely –\n<\/p>\n
      In the said First Schedule against “Calicut<\/p>\n
      University,     Calicut”      under  the    heading<\/p>\n
      ‘recognized Medical Qualification’ (in column<\/p>\n
      (2) and under the heading ‘Abbreviation for<\/p>\n
      Registration” 9in column (3) the following<\/p>\n
      shall be inserted namely.\n<\/p>\n<\/p>\n
Bachelor Medicine and                     MBBS
\nBachelor of Surgery
\n                               This shall be a recognized
\n                               medical qualification    when
\n                               granted by Calicut University,
\n                               Calicut on or after November
\n                               2008 in respect of students
\n                               being trained at Jubilee Mission
\n                               Medical College and Research
\n                               Institute, Thrissur Kerala.\n<\/p>\n<\/p>\n
29. Learned counsel for the petitioner contended that an<\/p>\n
yearly approval of the Medical Council, is contemplated<\/p>\n
only till such time as steps taken as contemplated under<\/p>\n
Section 11(2) of the Act are completed. Once the degree<\/p>\n
awarded to the students who passed out from the<\/p>\n
institution in question is recognized as a qualification in<\/p>\n
terms of Section 11(2) of the Act, then a further renewal<\/p>\n
of the approval is not contemplated.              This process<\/p>\n
evidenced by a notification under Section 11(2) of the Act<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  32<\/span><\/p>\n
amounts to what is called as a permanent recognition of<\/p>\n
the institution in question.        Institutions have been in<\/p>\n
existence for the past more than five years and a renewal<\/p>\n
of the approval of the institution for each year has been<\/p>\n
made by the Central Body after an inspection of the<\/p>\n
facilitates. An inspection report will be forwarded every<\/p>\n
year. Ultimately an inspection was conducted at the time<\/p>\n
when the 1st batch of students took their final year MBBS<\/p>\n
examinations and the adequacy or otherwise of the<\/p>\n
facilities provided in the institutions was assessed. It is<\/p>\n
after referring to the recommendations made by             the<\/p>\n
Medial Council that the Central Government decided to<\/p>\n
approve the degree offered from the institutions in<\/p>\n
question.     Neither the Medial Council Act          nor the<\/p>\n
regulations framed thereunder contemplates           a further<\/p>\n
renewal of the approval of the Medial institution.<\/p>\n
30. Mr.Alexander Thomas learned counsel appearing for<\/p>\n
the Medial Council of India took me through the<\/p>\n
provisions of Medial Council Act and the regulations. He<\/p>\n
further submitted that the Medial Council has        hitherto<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  33<\/span><\/p>\n
treated the issuance of notification of the Central<\/p>\n
Government under Section 11(2) of the Act vis-a-vis the<\/p>\n
degree offered from any Medial Institution as a final step<\/p>\n
in the elaborate procedure undertaken by the statutory<\/p>\n
body and      the    Central Government, in the matter of<\/p>\n
according approval for any medial institution.<\/p>\n
31. Mr.P.C.Sasidharan on the other hand submits that<\/p>\n
neither the Act nor the regulations framed thereunder<\/p>\n
contemplates a dispensation with the requirement of an<\/p>\n
yearly approval of the Medial Council, for any institution,<\/p>\n
even after verifying the adequacy of the facilities that are<\/p>\n
provided in the institution and recognition of the degree<\/p>\n
offered therein. Admittedly, he submits that the Medial<\/p>\n
Council has not renewed the approval of these institutions<\/p>\n
for the year 2009-10 and consequently an inference is to<\/p>\n
be drawn that         the institutions in question are not<\/p>\n
supported by a current approval from a Central<\/p>\n
Regulatory Body.\n<\/p>\n<\/p>\n
32. I have already referred to section 10A(1) and Section<\/p>\n
11 of the Act.        I have also been taken through the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  34<\/span><\/p>\n
minimum standards, requirements of the Medical College<\/p>\n
Regulations, 1999, framed by the Medial Council.      On a<\/p>\n
reading of the provisions of the Act and the regulations, I<\/p>\n
am of the view that the statutory Scheme contemplates an<\/p>\n
annual or even more frequent verification and assessment<\/p>\n
of the facilities that are provided in any Medical<\/p>\n
institution by the MCI which exercises statutory powers.<\/p>\n
A notification issued under Section 11(2) of the Act is an<\/p>\n
act of considerable import, in the statutory Scheme. A<\/p>\n
degree offered by any Medical institution is eligible to be<\/p>\n
treated as a recognized qualification only if it is so<\/p>\n
specified in the 1st schedule to the Medical Council Act.<\/p>\n
Absence of a notification will lead to an inference that a<\/p>\n
qualification acquired by a person from the institution in<\/p>\n
question is not a recognized          medical qualification.<\/p>\n
Exts.P6 and P7 will show that the qualification acquired<\/p>\n
by the two Medical institutions in question are now<\/p>\n
treated as recognized Medical institution within the<\/p>\n
meaning of Medical Council Act. The         exercise of an<\/p>\n
yearly approval of the Medical institution is intended to<\/p>\n
see that the institution is equipped with a necessary<\/p>\n
infrastructure and prescribed facilities, to enable the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  35<\/span><\/p>\n
students to prosecute their studies therein to acquire a<\/p>\n
degree which is otherwise eligible to be treated as a<\/p>\n
recognized Medical qualification. Once such an approval<\/p>\n
in terms of Section 11(2) is granted and so notified then it<\/p>\n
would lead to a statutory inference that the institutions,<\/p>\n
which are so included in the First schedule to the Medial<\/p>\n
Council Act, do have approval of the Central Regulatory<\/p>\n
body, the Medial Council of India and the Central<\/p>\n
Government.\n<\/p>\n<\/p>\n
33. A further perusal of the Medical Council Act not<\/p>\n
only does not offer any contra inference to be derived<\/p>\n
from a reading of the said provisions but would only<\/p>\n
support the aforesaid conclusion.Of particular significance<\/p>\n
is Section 19 of the Medical Council Act which enables<\/p>\n
the Central Government to withdraw the recognition, if<\/p>\n
the circumstances so warrant.          Thus the question of<\/p>\n
renewal of recognition or approval, as the case may be,<\/p>\n
does not arise in the case of institution, which is notified<\/p>\n
in terms of Section 11(2) of the Medical Council Act. The<\/p>\n
approval that was required in so far as the institution is<\/p>\n
concerned,      has preceded        the issuance of statutory<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  36<\/span><\/p>\n
notification under Section 11(2) of the Act.<\/p>\n
34. I am therefore, of the view that the stand taken by<\/p>\n
the University with respect             to the two Medical<\/p>\n
institutions in the instant case that do not have a current<\/p>\n
approval of the Medical Council of India for the year 2009-<\/p>\n
10 is erroneous and misconceived. The said stand has<\/p>\n
been taken on a wrong appreciation of the statutory<\/p>\n
scheme.\n<\/p>\n<\/p>\n
35. The next ground that has been taken by the<\/p>\n
University to deny an extension of affiliation which is<\/p>\n
common to all the four institution is that the institutions<\/p>\n
had effected selection and admission of students with<\/p>\n
regard to the rules and regulations issued in that behalf<\/p>\n
by the University. Same contentions had been raised<\/p>\n
with regard to these         institutions, during the previous<\/p>\n
year, ie, 2008-09 and it was pointedly considered by the<\/p>\n
Division Bench in W.A.241\/2009. It is apposite to refer to<\/p>\n
paragraph 18 of the said judgment and it is profitable to<\/p>\n
extract the same.\n<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  37<\/span><\/p>\n
      “We find considerable force in the submission<\/p>\n
      of the learned senior counsel for the 1st<\/p>\n
      respondent. Section 3(1) of Act 17\/2004 reads<\/p>\n
      as follows.\n<\/p>\n<\/p>\n
           “3.   Procedure for admission into self<\/p>\n
           financing      professional colleges    (1)<\/p>\n
           Notwithstanding anything contained in any<\/p>\n
           law for the time being in force or in any<\/p>\n
           judgment, decree or order of any Court or<\/p>\n
           any other authority or in any agreement,<\/p>\n
           the admission of students into a self<\/p>\n
           financing professional college shall be<\/p>\n
           made on the basis of merit as provided in<\/p>\n
           sub-sections (2) to (6).”\n<\/p><\/blockquote>\n
\n           Section 3 of the Act 19\/2006 is as follows:<\/p><\/blockquote>\n
           “3.   Method of admission in Professional<\/p>\n
           Colleges or institution:- Notwithstanding<\/p>\n
           anything contained in any other law for the<\/p>\n
           time being in force or any judgment,<\/p>\n
           decree or order of any Court or any other<\/p>\n
           authority, admission of students in all<\/p>\n
           professional colleges or institution to all<\/p>\n
           seats except Non-Resident Indian seats<\/p>\n
           shall be made through Common Entrance<\/p>\n
           Test conducted by the State followed by<\/p>\n
           centralized counseling through a single<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  38<\/span><\/p>\n
           window system in the order of merit by the<\/p>\n
           State      Commissioner      for    Entrance<\/p>\n
           Examinations in accordance with such<\/p>\n
           procedure as may be specified         by the<\/p>\n
           Government from time to time.\n<\/p>\n
      When the Regulations of the University were<\/p>\n
      substituted by the Act 17\/2004, which in turn<\/p>\n
      was repeated by Act 19\/2006           the striking<\/p>\n
      down of the relevant provisions of Act 19\/2006<\/p>\n
      will not resurrect the Regulations of the<\/p>\n
      University. Further except making a general<\/p>\n
      statement that the selection and admission<\/p>\n
      shall be made only on the basis of the Rules<\/p>\n
      and Regulations of the University, Government<\/p>\n
      etc., nothing was specifically stated in Ext.P4.<\/p>\n
      The University has also never alerted the 1st<\/p>\n
      respondent’s college, pointing out the method<\/p>\n
      of selection it should follow, as a condition for<\/p>\n
      continuance of the affiliation.      Further, we<\/p>\n
      notice that the method followed         by the 1st<\/p>\n
      respondent’s college for admission has, no the<\/p>\n
      approval of this Court also. The Supervisory<\/p>\n
      Committee headed by Justice P.A.Mohammed<\/p>\n
      took    actions    against    the  Self financing<\/p>\n
      Colleges, which followed similar methods for<\/p>\n
      admission of students.         While dealing with<\/p>\n
      those matters, this Court, in effect, approved<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  39<\/span><\/p>\n
      the method of admission based on the marks<\/p>\n
      secured in the entrance examination as well<\/p>\n
      as the marks secured in the relevant subjects<\/p>\n
      of the qualifying examination.      Though the<\/p>\n
      learned counsel for the University would point<\/p>\n
      out that the University was not a party to those<\/p>\n
      decisions,      we notice that the statutory<\/p>\n
      authority under Act 19\/2006,       which is to<\/p>\n
      supervise the admissions, was a party to those<\/p>\n
      proceedings. In the result, we notice that the<\/p>\n
      main objection taken against the method of<\/p>\n
      admission followed by the 1st respondent’s<\/p>\n
      college cannot be sustained in the absence of<\/p>\n
      any valid rules governing the field.\n<\/p>\n<\/p>\n
36. The findings and observations of the Division Bench<\/p>\n
though rendered in the case of Medical institutions would<\/p>\n
apply in the case of an Engineering Colleges also. The<\/p>\n
aforementioned finding, in my view, is sufficient to hold<\/p>\n
that the second ground of rejection put forward by the<\/p>\n
university in its decision taken on 18.6.2009 is also<\/p>\n
unsustainable. But Mr.Sasidharan has made a reference<\/p>\n
to three other sets of regulations, which do not seem to<\/p>\n
have been specifically raised before the Division Bench in<\/p>\n
W.A.241\/09. I therefore, think it is necessary to refer to<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  40<\/span><\/p>\n
the said regulations also and the submissions made by<\/p>\n
Mr.Sasidharan on the basis of the same for the sake of<\/p>\n
completion.\n<\/p>\n<\/p>\n
37. Mr.Sasidharan has made a reference to Ext.R1(c)<\/p>\n
“regulations”, produced along with the counter affidavit<\/p>\n
filed in W.P.(C).19591\/2009. Ext.R1(c) is an order issued<\/p>\n
by the Joint Academic Branch of the University of Calicut<\/p>\n
and issued on 4.3.2009. After referring to the meeting of<\/p>\n
two committees convened for the framing of regulations<\/p>\n
streamlined to the admissions to the Medical\/ Engineering<\/p>\n
and related courses, the order          goes on to state the<\/p>\n
following:-\n<\/p>\n<\/p>\n
            The     Committee       recommended    that<\/p>\n
      criteria for selection and method of admission<\/p>\n
      to        merit\/management          seats     for<\/p>\n
      Medical\/Engineering         and  related courses<\/p>\n
      conducted by Government\/Aided\/Self-financing<\/p>\n
      colleges affiliated to University of Calicut shall<\/p>\n
      be governed by the rules\/regulations framed by<\/p>\n
      the Commissioner of Entrance Examinations or<\/p>\n
      other competent authority appointed by the<\/p>\n
      Government of Kerala in consultation with the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  41<\/span><\/p>\n
     University and without contravening with the<\/p>\n
     stipulation of the apex bodies concerned (viz<\/p>\n
     Medical Council of India, Dental Council of<\/p>\n
     India, Indian Nursing Council, Central Council<\/p>\n
     of Homeopathy, Central council of India<\/p>\n
     Medicine, All India Council for Technical<\/p>\n
     Education, Council of architecture etc.) In all<\/p>\n
     matters related to selection and admission, the<\/p>\n
     decisions of the University shall be final.<\/p>\n
            It was further decided that the students<\/p>\n
     admitted by affiliated colleges violating the<\/p>\n
     above      regulations      are not eligible  for<\/p>\n
     registration to University examinations and<\/p>\n
     contravention of the above regulation shall<\/p>\n
     lead to withdrawal\/suspension of affiliation.”<\/p>\n
38. Mr.Sasidharan contends that the University has<\/p>\n
therefore, decided that the criteria for selection and<\/p>\n
method of admission to merit\/management seats in the<\/p>\n
Medical\/Engineering          courses  conducted   by   the<\/p>\n
Government\/Aided\/Self financial colleges affiliated to the<\/p>\n
University     of   Calicut    shall be governed   by  the<\/p>\n
rules\/regulations framed by the Commissioner of Entrance<\/p>\n
Examinations or other competent authority appointed by<\/p>\n
the Government of Kerala in consultation with the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  42<\/span><\/p>\n
University and without contravening the stipulation of the<\/p>\n
apex bodies.       It is contended that Ext.R1(c) would<\/p>\n
therefore, indicate that the admission to all self financing<\/p>\n
colleges affiliated the University of Calicut shall be<\/p>\n
governed by the rules and regulations framed by the<\/p>\n
Commissioner of Entrance Examinations in consultation<\/p>\n
with the University. It is contended that admittedly the<\/p>\n
managements had followed their own procedure. They<\/p>\n
have not effected admissions, in the year 2008-09 or the<\/p>\n
years earlier, on the basis of a set of regulations framed<\/p>\n
by the Commissioner in consultation with the University<\/p>\n
and consequently a violation in this regard can be<\/p>\n
legitimately taken note of by the University in denying an<\/p>\n
extension of affiliation.\n<\/p>\n<\/p>\n
39. I am not impressed with the submission for more<\/p>\n
than one reason. Firstly, the relevant portion of Ext.R1(c)<\/p>\n
which     has     been     extracted  above,  contemplates<\/p>\n
rules\/regulations     framed      by the  Commissioner    in<\/p>\n
consultation with the University to govern the admissions<\/p>\n
to the colleges affiliated to the Calicut University. Ext.R1<\/p>\n
(c), at best, would reflect a decision that is taken by the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  43<\/span><\/p>\n
University to be governed by a set of rules to be framed by<\/p>\n
the Commissioner in consultation with the University,<\/p>\n
regulating the admission to the affiliated colleges of the<\/p>\n
University. Ext.R1(c) does not refer to any particular set<\/p>\n
of   regulations     which     have  been framed    by  the<\/p>\n
Commissioner in the manner contemplated therein. Nor<\/p>\n
is it a case of the University that Ext.R1(c) has followed a<\/p>\n
set of regulations as contemplated therein. Ext.R1(c), at<\/p>\n
best, would therefore, be a declaration of the decision that<\/p>\n
is taken by the University. It does not contain a set of<\/p>\n
rules, otherwise in existence and it does not contain a set<\/p>\n
of rules, intended to govern the admissions to Self<\/p>\n
financing colleges affiliated to the University. The<\/p>\n
petitioners cannot be blamed, for contravening the set of<\/p>\n
regulations which are yet to come into existence.<\/p>\n
40. I also think it is necessary in this context to refer to<\/p>\n
the submission made by the learned counsel for the<\/p>\n
petitioner on the basis of certain regulations framed by<\/p>\n
the University in the year 2004 and stated to be applicable<\/p>\n
to Self financing Engineering colleges. The same called<\/p>\n
as Engineering Degree Courses Regulations published by<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  44<\/span><\/p>\n
the University of Calicut, and stated to be applicable with<\/p>\n
effect from 2004 admissions are           produced as Ext.P5<\/p>\n
along with W.P.(C).19599\/2009.             The conditions for<\/p>\n
admission to B.Tech Engineering degree courses is<\/p>\n
provided in the said regulations which reads as follows:-<\/p>\n
      Conditions for admission.\n<\/p><\/blockquote>\n
            Candidates for admission to the B.Tech<\/p>\n
      (Engineering) Degree Course shall be required<\/p>\n
      to   have     passed     the   Higher   Secondary<\/p>\n
      examinations of state Board of Kerala or<\/p>\n
      examinations recognized equivalent there to<\/p>\n
      by the any Universities of Kerala, with 50%<\/p>\n
      marks in Mathematics and 50% marks in<\/p>\n
      Physics, Chemistry and Mathematics put<\/p>\n
      together. Candidates, belonging to Socially<\/p>\n
      and Educationally Backward Classes with a<\/p>\n
      total family annual income not exceeding the<\/p>\n
      limit notified by the Government from time to<\/p>\n
      time, need only 45% marks in Mathematics<\/p>\n
      and 45% marks in Physics, Chemistry and<\/p>\n
      Mathematics        put      together.  Candidates<\/p>\n
      belonging to scheduled caste and schedules<\/p>\n
      tribe need only a pass in the qualifying<\/p>\n
      examination.<\/p><\/blockquote>\n
            They have to quality the Sate Level<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  45<\/span><\/p>\n
      Entrance Examination conducted by           the<\/p>\n
      Commissioner for Entrance Examination or<\/p>\n
      state      level\/National      Level Entrance<\/p>\n
      Examination approved by the Government as<\/p>\n
      equivalent.       They shall also satisfy the<\/p>\n
      conditions regarding age and physical fitness<\/p>\n
      as may be prescribed b the University of<\/p>\n
      Calicut.\n<\/p>\n<\/p>\n
41. Learned counsel for the petitioner submits that if<\/p>\n
the aforementioned are treated as conditions for<\/p>\n
admission prescribed by the University then, the<\/p>\n
institutions in question have ensured that the students<\/p>\n
who are admitted to their institutions satisfied the<\/p>\n
conditions of eligibility. Admissions are effected to the<\/p>\n
petitioners institutions on the basis of merit, assessed by<\/p>\n
aggregating the marks obtained by the candidate in the<\/p>\n
competitive examination conducted by the Commissioner<\/p>\n
of Entrance examinations and the marks in the qualifying<\/p>\n
examinations. Ranking is on the basis of inter se merit. It<\/p>\n
is ensured that the candidate has acquired the minimum<\/p>\n
eligible marks both in the entrance test conducted by the<\/p>\n
Commissioner as also in the qualifying examinations. I<\/p>\n
find force in the submission.\n<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  46<\/span><\/p>\n
42. The procedure followed by the Medical institutions<\/p>\n
in the matter of effecting admissions, by determining inter<\/p>\n
se merit on the basis of marks obtained by the candidate<\/p>\n
in the qualifying examination and in the entrance<\/p>\n
examination conducted by the commissioner, has been<\/p>\n
referred to by the Division Bench in W.A.241\/09 and the<\/p>\n
contentions raised by the University that the method of<\/p>\n
admission followed by the institution in that regard is<\/p>\n
illegal, has been rejected as well.\n<\/p>\n<\/p>\n
43. There are two other sets of rules which have been<\/p>\n
relied on by Mr.Sasidharan.         I will refer to them in the<\/p>\n
course of considering the contention that the colleges<\/p>\n
have contravened the statutory provisions in effecting<\/p>\n
appointment of teachers in the institution.<\/p>\n
44. The next ground that has been put forward by the<\/p>\n
University in this regard is that the Management have<\/p>\n
violated the provisions          contained in Statute 9(f) of<\/p>\n
Chapter 23 of the Calicut University First statutes, 1977,<\/p>\n
and that they have violated the undertaking given by them<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  47<\/span><\/p>\n
to the University at the time of granting affiliation that<\/p>\n
they will faithfully follow the provisions of the University<\/p>\n
Act.    Statutes, ordinances, regulations and directions<\/p>\n
issued by the University from time to time and also<\/p>\n
admitted only such students who are eligible as per the<\/p>\n
regulations of the University. Statute 9(f) of Chapter 23<\/p>\n
of the University First Statutes reads as follows:-<\/p>\n
     9(f) – The Educational Agency\/Management<\/p>\n
     shall give an undertaking to the University to<\/p>\n
     carry out faithfully, the provisions of the<\/p>\n
     University Act, Statutes, Ordinances, and<\/p>\n
     Regulations and the directions issued by the<\/p>\n
     University from time to time, in so far as they<\/p>\n
     are related to the college. The undertaking<\/p>\n
     shall be      endorsed by the Principal of the<\/p>\n
     college.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
45. It is contended that the Managements have violated<\/p>\n
statute 9(f) Chapter 23 of the University First statute,<\/p>\n
University essentially contends that the Managements<\/p>\n
have violated the undertaking given by them at the time of<\/p>\n
grant of provisional affiliation. I have already described in<\/p>\n
detail, in the preceding paragraph the contention of the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  48<\/span><\/p>\n
University that the petitioner\/institutions have admitted<\/p>\n
ineligible students.        I have referred to the set of<\/p>\n
regulations relied on by the University in this regard,<\/p>\n
produced as Ext.R1(c).          I have also referred to 2004<\/p>\n
regulations, referred to by the petitioners, and governing<\/p>\n
the admissions to B.Tech degree courses. Apart from the<\/p>\n
fact that I have already found that the case put forward<\/p>\n
by the University in this regard is unsustainable, I have<\/p>\n
also referred to the findings and observations made by the<\/p>\n
Division Bench, with regard to the similar contention that<\/p>\n
was raised by the University, in the matter of procedure<\/p>\n
for admission that have been adopted by the Medical<\/p>\n
institutions, in W.A.241\/09. It is also significant to note<\/p>\n
that the Division Bench has also referred to earlier<\/p>\n
judgments of this Court,           wherein the procedure for<\/p>\n
admission adopted by two of the institutions in question<\/p>\n
(which procedure is common to the other institutions also)<\/p>\n
and the finding of the Court on an earlier occasion that<\/p>\n
the said procedure is merit based and non exploitative. I<\/p>\n
also think it is significant that the University has not<\/p>\n
specified which clause in the undertaking that has been<\/p>\n
contravened and how the procedure of admissions<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  49<\/span><\/p>\n
adopted by the Universities has resulted in the<\/p>\n
contravention of        any binding    statutory rules and<\/p>\n
regulations.\n<\/p>\n<\/p>\n
46. The next common ground for rejection put forward<\/p>\n
by the University is that the teachers are selected and<\/p>\n
appointed by the petitioners in terms of the University<\/p>\n
Act, Statutes and Regulations, which is a condition<\/p>\n
mandated while granting recognition.         Mr.Sasidharan<\/p>\n
refers to Section 2(7) of the University Act and points out<\/p>\n
that self-financing college is also a private college<\/p>\n
affiliated to the Calicut University. He refers to Clause 6<\/p>\n
of the Calicut University First Statutes, which provides<\/p>\n
that in the case of a private engineering college,<\/p>\n
appointments to the teaching posts, including workshop<\/p>\n
staff shall be made by the educational agency only from a<\/p>\n
list of persons prepared by the selection committee<\/p>\n
according to the rank assigned by the committee. The<\/p>\n
constitution of the selection committee is also provided<\/p>\n
therein. Reference is also made to section 68A of the<\/p>\n
Calicut University Act, which reads as follows:<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  50<\/span><\/p>\n
      68A. Special provisions in respect of unaided<\/p>\n
      colleges       –    Notwithstanding     anything<\/p>\n
      contained in this Act or the statutes,<\/p>\n
      Ordinances, Regulations, rules, bye laws or<\/p>\n
      orders –\n<\/p>\n<\/p>\n
      (a). the scales of pay and other conditions of<\/p>\n
      service of the teaching and non-teaching staff<\/p>\n
      of unaided colleges and<\/p>\n
      (b). the admission and selection and fees<\/p>\n
      payable by, students in such colleges,<\/p>\n
      shall be determined, from time to time, by the<\/p>\n
      Government        on      the  basis    of  the<\/p>\n
      recommendations of a committee constituted<\/p>\n
      by the Government consisting of –\n<\/p>\n<\/p>\n
      (i).one of the Vice Chancellors of the<\/p>\n
      Universities in the State, nominated by the<\/p>\n
      Government;\n<\/p>\n
      (ii).the secretary to Government, Higher<\/p>\n
      Education Department (who shall be the<\/p>\n
      convenor of the committee); and<\/p>\n
      (iii).the Director of Collegiate Education.<\/p>\n
47. It is contended that, therefore, it is open to the<\/p>\n
Government to determine the scales of pay and the other<\/p>\n
conditions of teachers and non-teaching staff of unaided<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  51<\/span><\/p>\n
colleges.    The petitioner institutions are bound by any<\/p>\n
lawful directives that may be issued by the Government in<\/p>\n
that regard under Section 68(A) of the Act. They have<\/p>\n
appointed their own teaching staff without any reference<\/p>\n
to the University or the provisions of the Calicut<\/p>\n
University Act or the Calicut University First Statutes.<\/p>\n
The University is, therefore, entitled to take note of such<\/p>\n
statutory provisions and deny extension of affiliation, it is<\/p>\n
contended.\n<\/p>\n<\/p>\n
48. I have, in an earlier portion of the judgment,<\/p>\n
mentioned that I will refer to another set of Rules, relied<\/p>\n
on by the learned counsel for the University to<\/p>\n
substantiate his contention that the petitioner institutions<\/p>\n
have contravened the statutory provisions, both in the<\/p>\n
matter of effecting admissions in the institutions and in<\/p>\n
fixing the fee and collecting the same from the students.<\/p>\n
The question regarding applicability of those sets of rules,<\/p>\n
will be considered at this stage since certain      aspects<\/p>\n
regarding applicability of the first statutes and the first<\/p>\n
ordinances, are common.\n<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  52<\/span><\/p>\n
49. In the matter of admissions, learned counsel for the<\/p>\n
University had referred to the Calicut University First<\/p>\n
Ordinances, 1978 in general and the particular provisions<\/p>\n
therein fixing the fee leviable in affiliated colleges as<\/p>\n
contained in Chapter 17 of the Calicut University First<\/p>\n
Ordinances. It is contended that indisputably, the<\/p>\n
petitioners institutions have been collecting fees from the<\/p>\n
students far in excess of the fees fixed in the table<\/p>\n
contained in chapter 17 of the First Ordinances and that<\/p>\n
the First Ordinances interdict a private college affiliated<\/p>\n
to the University from collecting fees in excess of what is<\/p>\n
fixed therein. Since they have collected fees according to<\/p>\n
their own determination they have violated the provisions<\/p>\n
of the First Ordinances, it is contended. I have already<\/p>\n
extracted Section 68A of the University Act and it is<\/p>\n
significant to note that the Section contains a non-<\/p>\n
obstante clause. It was brought in by the University Laws<\/p>\n
Amendment Act 9\/95. Section 68A became part of the Act<\/p>\n
on the introduction of Chapter 8A in the Calicut University<\/p>\n
Act. It is a special provision in respect unaided colleges.<\/p>\n
The definition of a ‘private college’ under Section 2(16) of<\/p>\n
the Calicut University Act would include a college<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  53<\/span><\/p>\n
maintained by an educational agency and it might include<\/p>\n
a self-financing college, which is affiliated to the<\/p>\n
University. But, it is relevant to take note of the fact that<\/p>\n
the legislature itself, in its wisdom, was of the opinion that<\/p>\n
the existing provisions in the statutes, ordinances,<\/p>\n
regulations, rules, bye-laws or orders framed under the<\/p>\n
Calicut University Act, undoubtedly        providing for the<\/p>\n
scales of pay and other conditions of service of the staff<\/p>\n
and also providing for admissions, selection and fees<\/p>\n
payable by students in affiliated colleges cannot be<\/p>\n
considered as comprehensive of unaided colleges as such.<\/p>\n
This would be patently obvious when one goes by the<\/p>\n
scales of pay fixed in Chapter 17 of the University First<\/p>\n
Ordinances.      It does not require an elaborate process of<\/p>\n
ratiocination to note that the scale of fees prescribed<\/p>\n
therein would be totally inapplicable to a Self-financing<\/p>\n
Professional Colleges. It is relevant to note that even in<\/p>\n
the case of merit seats in Government colleges, the scale<\/p>\n
of fees now fixed for professional courses would be vastly<\/p>\n
higher than the fee fixed in Chapter 17 of the First<\/p>\n
Ordinances.\n<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  54<\/span><\/p>\n
50. It is thus, that the legislature thought it necessary to<\/p>\n
incorporate Section 68 (A) in the Calicut University Act as<\/p>\n
a plenary provision forming the source of power to issue<\/p>\n
regulations in the matter of scale of pay and other<\/p>\n
conditions of the teaching staff and admission and<\/p>\n
selection of staff in unaided colleges. But the power to<\/p>\n
frame such rules is conferred on the Government and not<\/p>\n
on the University.\n<\/p>\n<\/p>\n
51. It is not the case of the University that subordinate<\/p>\n
rules have been framed in terms of Section 68(A)of the<\/p>\n
Act. Obviously, neither the First Statutes nor the First<\/p>\n
Ordinances can be sourced to Section 68A of the Act.<\/p>\n
Both of them were enacted well prior to the introduction<\/p>\n
of Section 68A in the Act. Nor has my attention been<\/p>\n
invited to any amendment to the First Ordinances and<\/p>\n
First Statutes, specifically relatable to the Self-financing<\/p>\n
Colleges, brought in subsequent to the introduction of<\/p>\n
Section 68A of the Act.\n<\/p>\n<\/p>\n
52. I am, therefore, of the view that the provisions in the<\/p>\n
University First Statutes, as regards the procedure for<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  55<\/span><\/p>\n
appointment of teachers in colleges and the provisions in<\/p>\n
the First Ordinances fixing the fees payable by the<\/p>\n
students in such colleges will have to be treated as<\/p>\n
inapplicable to unaided colleges especially Self-financing<\/p>\n
Colleges. In that view of the matter, the stand taken by<\/p>\n
the University that the petitioners have contravened the<\/p>\n
provisions of the Calicut University First Statutes and the<\/p>\n
Calicut University First Ordinances in the matter of<\/p>\n
appointment of teaching staff in the colleges and in the<\/p>\n
matter of effecting admissions and in determining the fees<\/p>\n
payable by the students is unsustainable.<\/p>\n
53. In this context, I also think it is appropriate to refer to<\/p>\n
the submission by the learned counsel for the petitioners<\/p>\n
that in the matter of admission and determination of fees,<\/p>\n
there are at present no binding statutory regulations<\/p>\n
which, as such, regulate the said process in Self-financing<\/p>\n
Colleges. The contention is inter alia rested on the fact<\/p>\n
that the legislature had brought into force the Kerala Self-<\/p>\n
Financing Professional Colleges (Prohibition of Capitation<\/p>\n
Fees and Procedure for Admission and Fixation of Fees)<\/p>\n
Act, 2004.\n<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  56<\/span><\/p>\n
54. Section 3 of the 2004 Act prescribes the procedure<\/p>\n
for admission into self-financing professional colleges and<\/p>\n
Section 4 of the same provides for the determination of<\/p>\n
the fees.      A     format completely different from the<\/p>\n
procedure for admission in aided colleges was provided<\/p>\n
for in the 2004 Act. Both Sections 3 and 4 of the said Act<\/p>\n
contains a non-obstante clause, overriding as it were, any<\/p>\n
other rules having the force of law, prevailing at that point<\/p>\n
of time.      It is contended that the legislature had,<\/p>\n
therefore, evinced its intention to supersede any rule or<\/p>\n
regulation providing for the procedure for admission and<\/p>\n
determination of fees in so far as they may apply to Self-<\/p>\n
financing Colleges, by the provisions enacted in the<\/p>\n
plenary legislation.\n<\/p>\n<\/p>\n
55. 2004 Act was repealed by the Kerala Professional<\/p>\n
Colleges or Institutions (Prohibition of Capitation Fee,<\/p>\n
Regulation of Admission, Fixation of Non-exploitative Fee<\/p>\n
and Other Measures to Ensure Equity and Excellence in<\/p>\n
Professional Education) Act, 2006 vide Section 20 thereof.<\/p>\n
No doubt, certain crucial provisions in the 2006 Act were<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  57<\/span><\/p>\n
struck down by a Division Bench of this court in Lisie<\/p>\n
Medical and Educational Institution          v.   State of<\/p>\n
Kerala (2007 (1) KLT 409). But the said Act, as such,<\/p>\n
survives. The regulations which were prevailing prior to<\/p>\n
the 2004 Act, if purported to govern Self-financing<\/p>\n
Colleges in the matter of appointment and determination<\/p>\n
of fees was either superseded or rendered inapplicable<\/p>\n
qua Self-financing Colleges by enactment of 2004 Act and<\/p>\n
the said position in law continued by the enactment of<\/p>\n
2006 Act.      These regulations cannot be considered as<\/p>\n
either re-surfaced or resurrected either by reason of the<\/p>\n
repeal of 2004 Act or by reason of certain provisions of<\/p>\n
the 2006 Act having been declared as unconstitutional.<\/p>\n
Both the procedure for admission and determination of<\/p>\n
fees made under the University First Statutes and the<\/p>\n
First Ordinances are inconsistent with the statutory<\/p>\n
format brought about by the 2004 Act and the 2006 Act<\/p>\n
and therefore, they cannot be applied to the Self-financing<\/p>\n
Colleges. New Rules or Regulations, applicable to Self-<\/p>\n
financing Colleges can be framed only in terms of Section<\/p>\n
68A of the University Act and that has not been done<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  58<\/span><\/p>\n
hitherto.\n<\/p>\n<\/p>\n
56. This aspect, though not elaborately, had been<\/p>\n
considered by the Division Bench in W.A.No.241\/09.<\/p>\n
57. I find force in the said submission.         The plenary<\/p>\n
legislature while enacting 2004 Act was obviously<\/p>\n
intending to provide for a different format in the matter of<\/p>\n
appointment and fixation of fee in Self-financing Colleges.<\/p>\n
May be, the procedure as provided in the said statute was<\/p>\n
not brought into vogue. But the effect of the provisions<\/p>\n
contained in the said enactment, by operation of law will<\/p>\n
have to be accepted.           Anything inconsistent with the<\/p>\n
format provided under the 2004 Act in the matter of<\/p>\n
admission and fixation of fee, in Self-financing Colleges<\/p>\n
should be held to be impliedly repealed by the Self-<\/p>\n
financing Colleges or superseded by the application of<\/p>\n
Doctrine of supersession, which is only another facet of<\/p>\n
the Doctrine of implied repeal. The situation continued<\/p>\n
with the repeal of the 2004 Act, contemporaneous to the<\/p>\n
enactment of 2006 Act. I am, therefore, of the view that<\/p>\n
any subordinate rules or regulations framed under the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  59<\/span><\/p>\n
Calicut University Act prevailing prior to the enactment of<\/p>\n
2004 Act, should be treated as rendered inapplicable to<\/p>\n
the case of Self-financing Colleges, by the enactment of<\/p>\n
the 2004 Act and thereafter by the 2006 Act and any such<\/p>\n
regulations providing for a different format in the matter<\/p>\n
of selection and admissions in Self-financing Colleges,<\/p>\n
inconsistent with the plenary law mentioned above, should<\/p>\n
be treated as impliedly repealed insofar as Self-financing<\/p>\n
Colleges are concerned.\n<\/p>\n<\/p>\n
58. Once this position is accepted, it will also have to be<\/p>\n
mentioned that the right to establish and run an<\/p>\n
institution as Self-financing Colleges has been recognised<\/p>\n
and protected under Article 19(1)(g) of the Constitution by<\/p>\n
the Constitution Bench of the Supreme Court in TMA Pai<\/p>\n
Foundation v. State of Karnataka<\/a> {2002(8) SCC<\/p>\n
481}. The right of such institutions to establish their own<\/p>\n
format in the matter of admissions to the colleges and<\/p>\n
fixation of fee subject to such method being non-arbitrary,<\/p>\n
non-profiteering, fair and reasonable has also been upheld<\/p>\n
(para 40, 41 and 43 of the judgment in TMA Pai<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  60<\/span><\/p>\n
Foundation).\n<\/p>\n<\/p>\n
59. What remains are the grounds of rejection which are<\/p>\n
applicable only in the case of Medical Colleges. I will now<\/p>\n
proceed to consider the same.\n<\/p>\n<\/p>\n
60.    It is stated that the Amala Institute of Medical<\/p>\n
Sciences, Thrissur and the Jubilee Mission Medical<\/p>\n
College, Thrissur, have not prescribed tie up with<\/p>\n
Primary\/Community Health Centres for training of<\/p>\n
students and there are no facilities for training students<\/p>\n
for Post Mortem examination as per the Inspection<\/p>\n
Commission Report.\n<\/p>\n<\/p>\n
61. Learned counsel for the University Mr.Sasidharan<\/p>\n
submits that the students of these colleges are taken for<\/p>\n
training for Post Mortem to the Bangalore Medical<\/p>\n
College.      They do not have their own tie up with<\/p>\n
Primary\/Community Health Centres.\n<\/p>\n<\/p>\n
62. Learned counsel for the petitioner submits that the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  61<\/span><\/p>\n
institutions have a Primary\/Community Health Centres for<\/p>\n
training all students.            Training in Post Mortem<\/p>\n
Examination is given to the students in a different centre.<\/p>\n
In doing so, the institutions have not contravened any of<\/p>\n
the conditions for approval given by the Medical Council<\/p>\n
of India and therefore, the same cannot constitute a<\/p>\n
ground for rejection the extension of affiliation.<\/p>\n
63. One aspect which is relevant in considering this<\/p>\n
contention, is that the same is related to the existence of<\/p>\n
adequate facilities in the Medical institutions, both in the<\/p>\n
matter of tie up with the Primary\/Community Health<\/p>\n
Centres and also in the matter of training students for<\/p>\n
Post Mortem examination.            It cannot be gainsaid that<\/p>\n
these are aspects which obviously falls for scrutiny by the<\/p>\n
Medical Council of India. In other words, it is a Central<\/p>\n
Regulatory Body, which will have to assess the adequacy<\/p>\n
of the facility in the Medical institutions and then take a<\/p>\n
decision as to whether the qualification obtained by a<\/p>\n
student prosecuting his study from these institution’s can<\/p>\n
be recognised for the purpose of Section 11(2) of the<\/p>\n
Medical Council of India Act. The opinion given by the<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  62<\/span><\/p>\n
Medical Council of India, cannot but be of primordial<\/p>\n
importance in this matter. If the University feels that any<\/p>\n
specific aspects, regarding the facilities given in these<\/p>\n
institutions which are approved by the Medical Council of<\/p>\n
India, has not been correctly assessed by the Medical<\/p>\n
Council of India, or that there is gross disparity in the<\/p>\n
assessment made by the Central Regulatory Body and the<\/p>\n
University or that the approval given by the         Central<\/p>\n
Regulatory Body is vitiated by any fraud practised by the<\/p>\n
Institution, exercise by the institution, then it would be<\/p>\n
open to them to bring such aspects to the notice of the<\/p>\n
Medical Council of India and the seek further action. A<\/p>\n
different view as regards the existence of facilities in the<\/p>\n
institutions, at variance from the assessment made by the<\/p>\n
Medical Council of India and accepted by the Central<\/p>\n
Government for the purpose of Section 11(2) of the<\/p>\n
Medical Council of India Act cannot afford a justification<\/p>\n
for continuing affiliation to be approved institution. I am,<\/p>\n
therefore, of the view that the said ground put forth by the<\/p>\n
University     in    justification  of its stand    is  also<\/p>\n
unsustainable.\n<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  63<\/span><\/p>\n
64. The next ground, which has been put forth by the<\/p>\n
University as regards the Medical Colleges is that the<\/p>\n
candidates ineligible for admission as per the Rules of the<\/p>\n
University\/Government\/Medical Council of India were<\/p>\n
admitted and permitted to undergo the course of study<\/p>\n
and presented for the University Examinations. As rightly<\/p>\n
pointed out by the learned counsel for the petitioners, this<\/p>\n
aspect has been squarely considered by the Division<\/p>\n
Bench in W.A.No.241\/09 and found against the University.<\/p>\n
The same contention cannot again be resurrected by the<\/p>\n
University.\n<\/p>\n<\/p>\n
65. What remains is only the contention taken as regards<\/p>\n
Sahrudaya College of Engineering to the effect that they<\/p>\n
did not co-operate with the Inspection Commission<\/p>\n
appointed by the University. I am afraid, this contention<\/p>\n
is also not available at this stage in the light of Ext.P6<\/p>\n
judgment in W.P.(C)No.17643\/08 wherein a learned Judge<\/p>\n
of this court has squarely considered the contention and<\/p>\n
rejected in the years 2007-08 and 2008-09.<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  64<\/span><\/p>\n
66. Since I have undertaken an elaborate discussion of<\/p>\n
the issues, I consider it advantageous to summarize my<\/p>\n
conclusions as hereunder.\n<\/p>\n<\/p>\n
(i). The         petitioners        in   Writ    Petition<\/p>\n
Nos.19599\/2009 and 19600\/2009 namely Sahrdaya<\/p>\n
College of Engineering & Technology and Jyothi<\/p>\n
Engineering College            have been approved by the<\/p>\n
AICTE for the year 2009-10 as well.\n<\/p>\n<\/p>\n
(ii). The stand taken by the University that these<\/p>\n
two colleges are not entitled to an extension of<\/p>\n
affiliation for the year 2009-10 on the ground that<\/p>\n
they do not have a current approval from the AICTE<\/p>\n
is untenable and unsustainable.\n<\/p>\n<\/p>\n
(iii). The       petitioners        in   Writ    Petition<\/p>\n
Nos.19591\/2009          and      19604\/2009, the  Amala<\/p>\n
Institute of Medical Sciences and Jubilee Mission<\/p>\n
Medical College are recognized Medical Institutions<\/p>\n
in that behalf by the Medical Council of India and<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  65<\/span><\/p>\n
the Central Government. The degrees obtained by<\/p>\n
the students from these two institutions are treated<\/p>\n
as recognized medical qualifications by the Central<\/p>\n
Government in terms of Section 11(2) of the Medical<\/p>\n
Council Act, 1956.\n<\/p>\n<\/p>\n
(iv). Consequently, there is neither a necessity nor a<\/p>\n
provision in the Medical Council Act for an yearly<\/p>\n
approval of these two Medical Institutions.       The<\/p>\n
stand taken by the University that these two<\/p>\n
Medical institutions are therefore, not entitled to an<\/p>\n
extension of affiliation for the year 2009-10 because<\/p>\n
they do not have an approval from the Central<\/p>\n
Government for the year 2009-10, is untenable and<\/p>\n
unsustainable.\n<\/p>\n<\/p>\n
(v). The provisions in the Calicut University First<\/p>\n
Statutes providing for the constitution of the<\/p>\n
selection committee for appointing teaching staff in<\/p>\n
affiliated colleges, are inapplicable to the case of<\/p>\n
Self financing colleges affiliated to the University.<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  66<\/span><\/p>\n
Consequently the stand taken by the University that<\/p>\n
these Institutions have contravened the provisions<\/p>\n
of the University statutes or regulations in the<\/p>\n
matter of effecting appointment in their colleges is<\/p>\n
untenable and unsustainable.\n<\/p>\n<\/p>\n
(vi). Ext.R1(c) order dated 4.3.2009 contains only a<\/p>\n
decision by the University that the method of<\/p>\n
admission to Self financing colleges shall be<\/p>\n
governed by the rules\/regulations framed by the<\/p>\n
Commissioner in consultation with the University.<\/p>\n
Ext.R1(c) by itself does not contain the rules and it<\/p>\n
can only be treated as a proposal on the part of the<\/p>\n
University to frame such rules. No rules have been<\/p>\n
framed pursuant thereto.\n<\/p>\n<\/p>\n
(vii).      The provisions relating to method of<\/p>\n
admission and determination of fees as contained in<\/p>\n
the Calicut University First Ordinances, 1978, are<\/p>\n
inapplicable to the case of Self financing colleges.<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  67<\/span><\/p>\n
(viii).     The power to frame any rules, providing<\/p>\n
for the determination of procedure for admission<\/p>\n
and determination of fees in Self financing colleges<\/p>\n
is available to the Government in terms of Section<\/p>\n
68A of the University Act and the Government has<\/p>\n
not framed any rules in exercise of its powers under<\/p>\n
Section 68A of the Act so far.\n<\/p>\n<\/p>\n
67. The grounds stated by the University as contained in<\/p>\n
minutes of the meeting of the Syndicate held on<\/p>\n
18.6.2009, for denying extension of the affiliation to the<\/p>\n
petitioners are untenable and unsustainable.<\/p>\n
68. For all these reasons mentioned above, I am of the<\/p>\n
view that the petitioners are entitled to succeed.     The<\/p>\n
decision taken by the Syndicate of the Calicut University<\/p>\n
on 18.6.2009, (Ext.P4 in Writ Petition No.19599\/2009), is<\/p>\n
quashed. University is directed to extend the affiliation<\/p>\n
for all the petitioners, for the year 2009-10 and orders in<\/p>\n
this regard shall be passed within two weeks from the<\/p>\n
date of receipt of a copy of this judgment. Petitioners are<\/p>\n
W.P.(C).19599\/2009 & Connected Cases<\/p>\n
                                  68<\/span><\/p>\n
entitled to proceed further in the academic year 2009-10<\/p>\n
in consequence of the relief granted herein.<\/p>\n
      Writ petitions are allowed.\n<\/p>\n<\/p>\n
                                      V.GIRI,
\n                                      Judge<\/p>\n
mrcs<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court The Sahrdaya College Of … vs The University Of Calicut on 21 August, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-208087","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThe Sahrdaya College Of ... vs The University Of Calicut on 21 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-sahrdaya-college-of-vs-the-university-of-calicut-on-21-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Sahrdaya College Of ... vs The University Of Calicut on 21 August, 2009 - 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