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The Sahrdaya College of Engineering and Technology Vs. the University of Calicut and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberW.P. (C) No. 19599 of 2009
Judge
Reported in2009(3)KLJ185
ActsIndian Medical Council of India Act, 1956 - Sections 10A, 10(2), 10A(1), 10A(2), 11, 11(2) and 19; Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 - Sections 20; Calicut University Act - Sections 2(7), 2(16) and 68A; Calicut University Ordinances; Calicut University Regulations; Calicut University Rules; University Laws (Amendment) Act; Kerala Self-Financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act, 2004 - Sections 3, 3(1), 3(2) to (6) and 4; University/Government/Medical Council of India Rules; Constitution of India - Articles 19(1) and 226;
AppellantThe Sahrdaya College of Engineering and Technology
RespondentThe University of Calicut and ors.
Appellant Advocate Kurian George Kannanthanam and; Tony George Kannanthanam, Sr. Advs.
Respondent Advocate P.C. Sasidharan, Adv.
DispositionPetition allowed
Cases ReferredPai Foundation v. State of Karnataka
Excerpt:
- - thereafter, at my instance, counsel have submitted written submissions and i have considered the same as well. (c). 19599/2009 (and in other cases as well). ext. representations were filed by the petitioners as permitted by this court on 16.7.2009 as well. in the circumstances, the irresistible conclusion that will have to be legitimately drawn is that aicte has approved the petitioner nstitutions, for the year 2009-10 as well. central government, after obtaining the particulars as may be considered necessary from the person or college concerned, either approve or disapprove the same. 27. in so far as the medical institutions in the present case are concerned, a scheme submitted by them was recommended by the medial council. while dealing with those matters, this court, in effect,.....v. giri, j.1. a decision taken by the calicut university declining to extend the provisional affiliation of the petitioners herein have been challenged in these writ petitions. all the petitioners are private self financing colleges. petitioners in w.p. (c). 19599/2009 & 19600/2009 are the managers of self financing engineering colleges and the petitioners in w.p. (c). 19591/2009 & 19604/2009 are medical institutions. all the institutions were granted provisional affiliation by the university of calicut earlier and such affiliation was extended thereafter, from year to year. a dispute arose regarding extension of the provisional affiliation of these institutions for the year 2007-08 and 2008-09. this court had in the case of medical institutions, vide decision in jubilee mission medical.....
Judgment:

V. Giri, J.

1. A decision taken by the Calicut University declining to extend the provisional affiliation of the petitioners herein have been challenged in these writ petitions. All the petitioners are Private Self Financing Colleges. Petitioners in W.P. (C). 19599/2009 & 19600/2009 are the Managers of Self Financing Engineering Colleges and the petitioners in W.P. (C). 19591/2009 & 19604/2009 are Medical institutions. All the institutions were granted provisional affiliation by the University of Calicut earlier and such affiliation was extended thereafter, from year to year. A dispute arose regarding extension of the provisional affiliation of these institutions for the year 2007-08 and 2008-09. This Court had in the case of Medical Institutions, vide decision in Jubilee Mission Medical College and Research Institute v. University of Calicut 2008 (4) KLT 966 held that the University was bound to take a decision regarding extension of the provisional affiliation of those institutions before the commencement of the academic year and if the University does not take a decision in that regard, then, the provisional affiliation must be treated as having been extended for one more year. Accordingly, it was declared that the Medical institutions must be deemed to have had a provisional affiliation for the years 2007-08 and 2008-09. Consequential directions on the strength of such declaration were also issued.

2. The judgment in Jubilee Mission Medical College was affirmed by a Division Bench.

3. In the case of Medical institutions, the challenge has been mounted against the decision taken by the Syndicate of the University, on 18.6.2009, declining to extend the provisional affiliation for the year 2009-10.

4. In so far as the Engineering colleges are concerned, a similar view was adopted by a learned Judge in W.P. (C). 17639/2008 and Connected Cases and by judgment dated 23-1.2009, it was inter alia declared that the provisional affiliation for those two institutions must be treated as extended till an order is passed on their applications. It was further directed that the appearance of the students from those institutions in the examinations pursuant to the interim orders passed by this Court, shall be regularized and the answer papers shall be valued and results declared. The Engineering colleges have also challenged the decision taken by the Syndicate of the Calicut University on 18.6.2009 declining to grant provisional affiliation for the year 2009-10. Since there is acommonality in several of the issues that have been raised for consideration in these writ petitions, ' they have been taken up together. The common issues shall be dealt with in the first-instance and those issues which are peculiar to the Engineering Colleges or the Medical institutions, as the case may be, shall be dealt with separately.

5. When these writ petitions came up for admission, I heard Mr. Kurian George, Kannamthanam, learned senior counsel for the petitioners and Mr. P. Sasidharan, learned Counsel for the University, initially on the question of interim relief. It was then felt that more elaborate submission by the counsel would be required and by consent of the counsel I heard final arguments in the writ petitions on several days. Therefore, these writ, petitions are being disposed of by a common judgment. Elaborate submissions have been made by the counsel on either side. Thereafter, at my instance, counsel have submitted written submissions and I have considered the same as well. I will refer to the bare facts in W.P. (C). 19599/2009 filed by the Sahrdaya College of Engineering and Technology as typical of the contentions raised by the Engineering Colleges and thereafter, I will refer to the bare facts in W.P.(C). 19591/2009, which would be typical of the contentions raised by the Medical Institution. On my request, Sri. Alexander Thomas learned Standing Counsel for the Medical Council of India also made submissions regarding certain provisions of the Medical Council of India Act, 1956.

6. The petitioner in W.P. (C). 19599/2009 is the Manager of a Self Financing Engineering College under the University of Calicut. It is contended that the Government have been making efforts since 2006 to take over 50% of the seats in Private Self Financing Professional Colleges. According to them, the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006, (hereinafter referred to as the Professional Colleges Act) was enacted to take over 50% of the seats in those Colleges to be filled up through Government machinery, at the rates fixed by the Government Substantive provisions of the said Act were struck down by a Division Bench of this Court in Lisie Medical and Educational Institution v. State of Kerala 2007 (1) KLT 409. The institution was affiliated to the University of Calicut and the affiliation was being extended on an year to year basis. But invariably the order of affiliation was given only in the course of the academic year and this was the case in almost all the institutions. There is a contention raised by the Colleges to the effect that the Management of these institutions have been singled out for discriminatory treatment by the Government since they come under a common umbrella, viz. the Kerala Christian Professional College Managements Federation. The Christian Managements have resisted the pressures exerted by the Government and the University and have followed a fair, transparent and merit based method of selection. The Association comprises 10 Catholic Engineering Colleges in Kerala (and two Medical Colleges which are the petitioners in the other two writ petitions.)- Admissions have been based on a common prospectus issued by the Association. Management quota has been abolished in these colleges. Capitation fees has been prohibited. It is contended that merit is the only basis for the admission and accordingly, the marks obtained by the candidates in the Common Entrance Test conducted by the State and the marks obtained by the candidates in the qualifying examinations have been adopted as the basis for determining the merit. It is contended that the University thereafter, embarked upon a series of measures against the four Colleges coming within their jurisdiction and this was because the Associations did not yield to Government's pressure. The students were not permitted to appear for the successive exams thereafter, and thus, a difficulty was faced for several semester exams. It was by Ext.P6 judgment, that this Court had declared that the Colleges must be treated as having provisional affiliation till a contra decision is taken on their applications. Though the University filed an appeal against the said judgment (Ext.P6), appeals have not been admitted, but ordered to be posted for hearing. Petitioner had applied for extension of affiliation for 2009-10 on 20.3.2009. (in the of the other Engineering College -the petitioner in W.P. (C). 19600/09 had applied on 24.2.2009). Nothing was heard from the University on the said application (Ext. R1(b)). The University was bound to take a decision on the question of continuance of the affiliation or confirmation of affiliation as the case may be, by 31.3.2009. It was not done. The Management Association had issued an advertisement in all the editions of Malayala Manorama, Deepika and The Hindu, calling for applicants to the ten Engineering Colleges coming under the Management Association. A common prospectus was issued by these Colleges. Petitioner contends that immediately thereafter, a news item appeared in the newspapers warning the public that no students should take an admission in the colleges which do not have continued affiliation. Names of the petitioner's colleges were not included in the University website. News item referred to a press release by the University in mis regard as evidenced by Ext. P2. It seems that the press release came about on the day following the issuance of a notification by the Association calling for applications from interested students for admission to B. Tech course for the year 2009-10.

7. A news item was flashed on 18.6.2009 that the petitioner's College and three other colleges affiliated to the Calicut University would have no affiliation for 2009-10. Petitioner requested the University to give a copy of the decision taken. It was not done. Petitioner approached this Court for a direction to the University to give a copy of the decision taken on 18.6.2009. Ultimately this Court, issued a direction to the University to give a copy of the decision on or before 3.7.2009, University even took up the matter in appeal. Ultimately, Ext. P4 decision was communicated to the petitioner and it is this decision taken by the University as evidenced by Ext. P4 that has been challenged in the writ petition.

8. Nine reasons given in Ext.P4 to deny continuance of affiliation or deny a grant of affiliation for the year 2009-10 have been challenged by the petitioner. To avoid repetition, I will refer to these contentions, after narrating bare facts relating to the Medical Institutions.

9. The petitioner in W.P. (C). 19591/2009 is a Medical institution. The contentions mentioned in relation to the petitioner hi W.P. (C). 119599/2009 119599/2009 , as regards the alleged steps taken by the University against the Christian Management institutions, have been repeated by the petitioner in this case also. I will avoid repetition of the same for the sake of brevity. But as stated at the outset, this Court had in Jubilee Mission Medical College and Research Institute v. University of Calicut 2008 (4) KLT 966 declared that the Medical institutions in these cases shall be treated as having had affiliation for the years 2007-08 and 2008-09 and had further directed that the results of the examinations taken by the students of the petitioner's colleges shall be published. This was affirmed by the Division Bench by Ext P 10 judgment dated 13.3.2009. Petitioner was also served with a copy of the decision taken by the Syndicate of the Calicut University on 18.6.2009 only after it had approached this Court and an order was issued in that regard. Petitioner has challenged each one of the reasons given in the said decision taken on 18.6.2009 (Ext.P5) for denying it affiliation for the year 2009-10.

10. I consider it advantageous to categorise common issues which arise for consideration in these four cases together and then deal with the issues which ate peculiar to Medical institutions on one hand and the Engineering Colleges on the other. Reasons given by the University to deny grant of provisional affiliation for the year 2009-10 are the following:

(i). The application for affiliation is not accompanied by the permission/approval by the AICTE (or MCI as the case may be) for extension of approval for continuation of the course for the year 2009-10.

(ii). The continued provisional affiliation for the year 2006-07 was granted with a specific condition that 'the selection and admission shall be made on the basis of the rules and regulations of the University/Government and on the basis of the directions issued by the University/Government from time to time, failing which the affiliation granted will automatically be cancelled' and the Management has violated the above condition.

(iii).The Management violated the provisions contained in statute 9(f) of Chapter 23 of the Calicut University First statutes, 1977, (hereinafter referred to as the 1st statute). The Management violated the undertaking given by them to the University at the time of grant of affiliation to the effect that they will faithfully follow the provisions of the University Act, statutes, ordinances, regulations and directions issued by the University from time to time and also admit only such students who are eligible as per the regulations of the University.

(iv). These Management violated rules and relevant provisions of the ordinances of the University/Government and AICTE (or MCI as the case may be) in the matter of selection and admission of students and collection of tuition fee and other fees leviable from students.

(v). The teachers are selected and appointed not in terms of the University Act, statutes and regulations, which is a condition mandated while granting recognition.

11. I will deal with the two reasons given in relation to the Medical colleges and one aspect which is peculiar to Sahrdaya College of Engineering, after I deal with the common issues.

12. But before I deal with the above contentions, it would only be appropriate to deal with a preliminary objection raised by Mr. P. CSasidharan as regards the maintainability of the writ petitions.

13. All these writ petitions have been filed on 13.7.2009 and they challenge the decision taken by the Syndicate of the Calicut University on 18.6.2009 (Ext.P4 in the case of Engineering Colleges and Ext.P5 in the case of Medical institutions). It is their contention that the said decision itself was not supplied to them in spite of their request and they had to approach this Court to get a copy of the decision taken by the Syndicate on 18.6.2009. This Court had directed the University to supply a copy of the said decision taken by the Syndicate on 18.6.2009, on or before 3.7.2009. It is the case of the petitioners that the said direction itself was taken up in appeal before a Bench of this Court. It was ultimately only thereafter, that the decision was actually communicated. As stated above, the writ petitions were filed on 13.7.2009 and they came up for admission on the same day. The Standing counsel was requested to get instructions and accordingly, they were posted on 16.7.2009. On the said day, the counsel for the University submitted that a short counter affidavit is being filed. Writ petitions were there fore directed to be posted on 20.7.2009. On the very same day, the counsel for the University had also submitted that the standing committee of the Syndicate met on 16.7.2009 and the Syndicate was scheduled to meet on 18.7.2009. He further submitted that it will be open to the petitioner's to depute an authorized representative to make a representation to the Syndicate, if they are advised to do so and such representation shall be considered by the standing Committee and the views of the Committee shall also be placed before the Syndicate scheduled to meet on 18.7.2009. This Court had made it clear that the decision, if any, taken by the Syndicate after a reference to the representation to be submitted by the petitioners, as permitted by this Court would also be ascertained by the learned Standing Counsel for the University and brought to the notice of this Court by 20.7.2009. This Court had permitted the petitioners to file a representation and meet the Registrar on 17.7.2009. But it was further made clear that the representation if any, by the petitioners and a consideration of the same by the standing Committee by the Syndicate, shall be without prejudice to the contentions of either side in the writ petition. The Syndicate had then taken another decision on 18.7,2009 and an order was thereafter issued by the University on 22.7.2009 produced as Ext. R1(e) in W.P. (C). 19599/2009 (and in other cases as well). Ext. R1(e) reflects a unanimous resolution of the Syndicate that the continuance of the provisional affiliation of the colleges need not be granted but also refers to the decision taken by the Syndicate on 18.6.2009, which has been impugned in these writ petitions. Representations were filed by the petitioners as permitted by this Court on 16.7.2009 as well. It is contended by the learned Counsel for the University that ultimate decision by the University is that which is reflected in Ext. R1(e) dated 22.7.2009. There is no challenge to the said decision in these writ petitions. What is challenged in these writ petitions, he contends, is only an unconfirmed minutes of the meeting of the Syndicate held on 18.6.2009. This decision by itself does not have any consequences. The substance of the contention taken is that the writ petition does not mount a challenge, as it were, against the University order dated 22.7.2009 and therefore, unless such a decision is challenged and the challenge is upheld, no direction can be issued to the University in the matter of grant of affiliation as sought for by the petitioners.

14. As I stated, this contention was pursued vehemently by the learned Counsel for the University. Therefore, I have anxiously considered the same. I am afraid that the contention is a technical one and is essentially related to the form and not the substance of the issues which are germane for consideration.

15. The minutes of the meeting of the Syndicate on 18.6.2009 does not show that it is an unconfirmed or a provisional decision. Reasons given by the Syndicate of the University to deny grant of affiliation for these institutions for the year 2009-10 are spelt out in the minutes of the decision taken on 18.6.2009 which, indisputably, has been challenged in these writ petitions. One of the grounds that has been raised in this writ petition is rested on the alleged violation of the principles of natural justice. Apparently, the submission made on behalf of the University on 16.7.2009 and recorded in the order passed on the said date, enabling as it were a representative of the institution to mate a representation against the decision of the Syndicate taken on 18.6.2009 must have been made realising the gravity of the contention that the decision taken on 18.6.2009 was in violation of the principles of natural justice and also realising the possibility of the decision being set at naught by this Court on judicial review. The petitioners had made a detailed representation against each one of the grounds, as permitted by this Court. All that they required at that point of time was an opportunity to pursue the contention that the decision taken by the University was, among others in violation of principles of natural justice. In substance, the grounds for denying affiliation as contained in Ext. R1(e) dated 22.7.2009 is only a reiteration of what has already been expressed on 18.7.2009. Significantly, the Syndicate which met on 18.7.2009 had only confirmed its minutes ofthe meeting held on 18.6.2009. Petitioners had to approach this Court for even a copy ofthe decision taken by the Syndicate and it is difficult to ignore the irrefutable fact that the University had even challenged an order passed by this Court to give a copy of the decision to the petitioners. Be that as it may, these writ petitions have been filed on 13.7.2009, after a receipt of the copy of the decision taken on 18.6.2009. The grounds taken for denying affiliation are being considered on merits and the decision making process of the University has also been subject to judicial review. This Court exercising powers under Article 226 of the Constitution of India is primarily concerned with the substance of the contentions of the parties and not with technical aspects which realty do not have a bearing on the merits or demerits of the decision that is subjected to judicial review. I find no substance in the preliminary objection raised on behalf of the respondents.

16. I shall now consider the legality and correctness of the reasons given by the University, as contained in the minutes of the meeting of the Syndicate held on 18.6.2009. I should again take note of the fact that the same reasons have been repeated in Ext. R1(c) proceedings issued by the University on 22.7.2009. I shall first deal with those issues which are common to all the four institutions and then deal with the individual issues applicable to the Medical institutions or the Engineering Colleges as the case may be.

17. The first common ground which has been stated by the University is that the application for affiliation is not accompanied by the permission/approval of the AICTE/MCI for extension of approval for continuation of the course for the year 2009-10.

18. This issue has different connotations in the case of Engineering Colleges on one hand and the Medical institutions on the other. Therefore, I will deal with this issue in the context of the statutory provisions that are applicable to Engineering Colleges and Medical Institutions.

19. But first I think it is appropriate to take note of the contentions raised by the learned Counsel for the petitioner that literally understood, the reason put forth by the University, in this context namely that the application for affiliation was not accompanied by permission/approval by the AICTE/MCI has no legitimate legs to stand on. Reference is made to Chapter 23 of the University First Statutes and the provisions contained therein dealing with the submission of an application for affiliation. The provisions contained in the First Statutes, Chapter 23, essentially are relatable to the process to be undertaken in the matter of obtaining affiliation from the University for the first time. The concept provisional affiliation is not ex facie discernible from the statutory regulations. But it cannot be gainsaid that the University has the power to grant affiliation for a limited period in the first instance and then renew the same from year to year. It is accordingly that the provisional affiliation was granted in the case of these colleges for one year in the first instance and the said provisional affiliation was extended till the year 2006-07. In the case of Medical colleges, this Court had in the case of Jubilee Mission Medical College and Research Institute v. University of Calient 2008 (4) KLT 966 declared that the Colleges must be deemed to have provisional affiliation for the years 2007-08 and 2008-09. In the case of Engineering Colleges, a similar declaration was granted by this Court, with a slight difference that the period of provisional affiliation was directed to be operative till the University tates a decision. In substance, the direction issued by this Court is operative uniformally as regards all the four colleges.

20. I find force in the submission made by the leaned Counsel for the petitioner that there is no prescribed format for an application for extension of provisional affiliation nor is their any statutory provision which compells the applicant to produce a copy of approval granted by the Central Authority namely the AICTE/MCI as the case may be, for the year in relation to which extension of affiliation is sought, along with the application to be considered by the University. If that be so, then the reason given by the University in this regard namely that the application for affiliation was not accompanied by permission/approval by the AICTE for the year 2009-10 is misconceived. It has no basis in the statutory provisions regulating the actions of the University in this regard.

21. Learned Counsel for the University submits that in substance the objection is that here is nomatetial on record to show that the Central Regulatory Body has granted permission/approval for the continuance of the courses in question, for the year 2009-10. The contention is therefore, one qua the substance of the matter and not regarding the form. I have proceeded to consider the said contention on merits.

22. In so far as the Engineering colleges are concerned, I will refer to the documents placed on record in the case of W.R (C). 19599/2009 and the same would apply in the case of the other Engineering college also. Ext. R1(a) produced by the University is the extension of approval granted to the petitioner by the AICTE for the year 2007-08. The period of approval granted therein is 2007-08. Ext.P8 produced along with the reply affidavit is a communication from the AICTE addressed to the Principal Secretary to Government, Higher Education Department intimating the extension of approval by the Council to the petitioner/College for the year 2008-09. The said order of approval, Ext. P8, contemplates the institutions filing a compliance report with the requisite processing fee every year by the 31st of August irrespective of the period of approval. It is further stated that the approval is subject to rectification of the observations/deficiencies/specific conditions by 31st of August, 2008. According to the petitioner, the compliance report was forwarded by it to the AICTE within the time stipulated and the approval was extended for the year 2009-10 also and this feet is evidenced by the information posted by AICTE in its website titled 'status of approval for AICTE approved Engineering and Technological institutions for the year 2009-10'. Both the Engineering Colleges are included in the 'status information posted by the AICTE in its website and the information relates to the courses which are approved for the institution in question, along with the approved intake for the year 2008-09 and the approved intake for the year 2009-10, It is the case of the petitioner pleaded in the writ petition that an extension of the order of approval for the year 2009-10 in the printed form has not been issued to any one of the approved institutions and that it will normally be issued only in May-June-July. It is further asserted therein that the extension of the approval will be evidenced by the information posted by the AICTE in its website and a physical copy of the said information downloaded from the website was lated produced by the petitioner as Ext. P5 and it is to this, I have made a reference. Materials on record do not suggest any ambiguity as regards the existence of current approval by the AICTE.

23. Mr. P.C. Sasidharan submits that the University is not bound to take note of the information allegedly posted by the AICTE in its website and it is entitled to insist that an order similar to Ext. R1(a) or Ext. P8 as the case may be, for the year 2009-10 should be produced by the institution either along with the application for extension of approval or at least before the University took a decision in this regard, I am not impressed with the submission nor is such requirement spelt out by the statute, which governs the processing of the application for affiliation. At any rate, the question is whether there is in existence, current approval by the AICTE, qua the institution in question, for the courses which are legitimately offered therein. Indisputably there is an order of approval in the printed form till and inclusive of the year 2008-09. There is evidence of approval having been extended by the AICTE for the year 2009-10, signified by the information posted by the said authority in its website. University has no case that the said information is incorrect or that the information available from the website of AICTE is wrong or fabricated. In fact, if there is such a suspicion lurking in the mind of the University, it was always possible for them to seek a clarification from the AICTE. I also think it is appropriate to refer to the fact that the petitioner had, in the notice of hearing submitted as Ext. R1(c) as permitted by this Court by the interim order dated 16.7,2009, not only asserted the existence of current approval by the AICTE for the year 2009-10 but had also enclosed a physical copy of the information downloaded from the website along with their hearing note. There is no assertipn by the University that the information so furnished is wrong and has been so verified. In the circumstances, the irresistible conclusion that will have to be legitimately drawn is that AICTE has approved the petitioner nstitutions, for the year 2009-10 as well.

24. In so far as the Medical Colleges are concerned, the statutory framework related to approval of the institution by the Central Regulatory Body is provided for by the Medical Council Act and the regulations framed the reunder. It is apposite to refer to Section 10A and Section 11 of the Indian Medical Council Act, 1956, in this regard. Section 10A(1) is relevant and is, extracted herein.

Notwithstanding anything contained in this Act or any other law for the time being in force-

(a) no person shall establish a medical college; or

(b) no medial college shall-

(i). open a new or higher course of study or training (including a postgraduate Course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognized medical qualification or

(ii). increase its admission capacity in any course of study or training (including a post-graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

25. Thus, a Medical College can be established by a person only with a previous permission of the Central Government, obtained in accordance with the provisions of Section 10A. Sub-section 2 of Section 10 provides that a person shall, for the purpose of obtaining permission under Section 10A(1), submit to the Central Government a scheme in accordance with the provisions of Section 10A(2)(b), and the scheme shall be referred to the Medical Council which shall then give its recommendations. Central Government, after obtaining the particulars as may be considered necessary from the person or college concerned, either approve or disapprove the same. If the Scheme is approved, it is then taken as a permission under Section 10A(1) of the Act Medical Council is called upon to consider a scheme and give its recommendations having regard to the aspects mentioned in Section 10A.

26. Section 11 of the Act deals with recognition of Medical qualifications granted by Universities or Medical institutions in India. It reads as follows.

Recognition of medial qualifications granted by Universities or medical institutions in India - The medical qualifications granted by any University or medical institution in India which are included in the First schedule shall be recognized medical qualifications for the purpose of this Act.

27. In so far as the Medical institutions in the present case are concerned, a Scheme submitted by them was recommended by the Medial Council. Indisputably they were granted approval, from year to year till and inclusive of 2008-09. it seems that the 1st batch of MBBS students from the two medical institutions in question had passed out in the year 2008. It is on record that a Medical Council had inspected the two medical institutions in November 2008 for the purpose of verifying whether an approval can be granted for the award of MBBS degree, to the students who pass out from the two institutions. The Council inspector's report was considered by the Executive Committee of the Medical Council and their recommendations are contained in Ext.P7 which reads as follows.

I am to state that the General Body of this Council at its meeting held on 1.3.2009 considered the Council Inspectors report (27th and 28th November 2008) for approval of Jubilee Mission Medical College & Research Institute, Thrissur for the award of MBBS degree granted by Calicut University and the Council approved the following recommendations of the Executive Committee/ AdhocCommittee:

The members of the Adhoc Committee appointed by the Honourable Supreme Court and of the Executive Committee of the Council decided to recommend that Jubilee Mission Medical College & Research Institute, Thrissur be approved for the award of MBBS degree granted by Calicut University, Kottayam with an annual intake of 100 (One hundred) students per year.

In view of the above, I am directed to request you to issue a necessary notification recognizing Jubilee Mission Medical College & Research Institute, Thrissur for the award of MBBS degree -granted by Calicut University on or after November 2008 in this regard.

28. What took place thereafter is a procedure which is provided for under Section 11(2) of the Act and the recommendations of the Medical Council was accepted by the Central Government which issued a notification under the 1st schedule to the Medical Council Act, 1956. Relevant Extract of the said notification dated 10.6.2009, Ext. P6, is also extracted herein for ready reference.

In exercise of the powers conferred by Sub-section (2) of Section 11 of the Indian Medical Council Act, 1956 the Central Government after consulting the Medical Council of India, hereby makes the following further amendments in the First Schedule to the said Act, namely

In the said First Schedule against 'Calicut University, Calicut' under the heading 'recognized Medical Qualification' (in column (2) and under the heading, 'Abbreviation for Registration' 9in column (3) the following shall be inserted namely.Bachelor Medicine and MBBSBachelor of Surgery This shall be a recognized medical qualificationwhen granted by Calicut University, Calicut on or after November 2008 in respect of students being trained at Jubilee Mission Medical College and Research Institute, Thrissur Kerala.

29. Learned Counsel for the petitioner contended that an yearly approval of the Medical Council, is contemplated only till such time as steps taken as contemplated under Section 11(2) of the Act are completed. Once the degree awarded to the students who passed out from the institution in question is recognized as a qualification in terms of Section 11(2) of the Act then a further renewal of the approval is not contemplated. This process evidenced by a notification under Section 11(2) of the Act amounts to what is called as a permanent recognition of the institution in question. Institutions have been in existence for the past more than five years and a renewal of the approval of the institution for each year has been made by the Central Body after an inspection of the facilitates.

An 'inspection report will be forwarded every year. Ultimately an inspection was conducted at the time when the 1st batch of students took their final year MBBS examinations and the adequacy or otherwise of the facilities provided in the institutions was assessed. It is after referring to the recommendations made by the Medial Council that the Central Government decided to approve the degree offered from the institutions in question. Neither the Medial Council Act nor the regulations framed thereunder contemplates a further renewal of the approval of the Medial institution.

30. Mr. Alexander Thomas learned Counsel appearing for the Medial Council of India took me through the provisions of Medial Council Act and the regulations. He further submitted that the Medial Council has hitherto treated the issuance of notification of the Central Government under Section 11(2) of the Act vis-a-vis the degree offered from any Medial Institution as a final step in the elaborate procedure undertaken by the statutory body and the Central Government, in the matter of according approval for any medial institution.

31. Mr. P.C. Sasidharan on the other hand submits that neither the Act nor the regulations framed thereunder contemplates a dispensation with the requirement of an yearly approval of the Medial Council, for any institution, even after verifying the adequacy of the facilities that are provided in the institution and recognition of the degree offered therein. Admittedly, he submits that the Medial Council has not renewed the approval of these institutions for the year 2009-10 and consequently an inference is to be drawn mat the institutions in question are not supported by a current approval from a Central Regulatory Body.

32. I have already referred to Section 10A(1) and Section 11 of the Act. I have also been taken through the minimum standards, requirements of the Medical College Regulations, 1999, framed by die Medial Council. On a reading of the provisions of the Act and the regulations, I am of the view that the statutory Scheme contemplates an annual or even more frequent verification and assessment of the facilities that are provided in any Medical institution by the MCI which exercises statutory powers. A notification issued under Section 11(2) of the Act is an act of considerable import, in the statutory Scheme. A degree offered by any Medical institution is eligible to be treated as a recognized qualification only if it is so specified in the 1st schedule to the Medical Council Act. Absence of a notification will lead to an inference that a qualification acquired by a person from the institution in question is not a recognized medical qualification. Exts. P6 and P7 will show that the qualification acquired by the two Medical institutions in question are now treated as recognized Medical institution within the meaning of Medical Council Act. The exercise of an yearly approval of the Medical institution is intended to see that the institution is equipped with a necessary infrastructure and prescribed facilities, to enable the students to prosecute their studies therein unacquire a degree which is otherwise eligible to be treated as a recognized Medical qualification. Once such an approval in terms of Section 11(2) is granted and so notified then it would lead to a statutory inference that the institutions, which are so included in the First schedule to the Medial Council Act, do have approval of the Central Regulatory body the Medial Council of India and the Central Government.

33. A further perusal of the Medical Council Act not only does not offer any contra inference to be derived from a reading of the said provisions but would only support the aforesaid conclusion. Of particular significance is Section 19 of the Medical Council Act which enables the Central Government to withdraw the recognition, if the circumstances so warrant Thus the question of renewal of recognition or approval, as the case may be, does not arise in the case of institution, which is notified in terms of Section 11(2) of the Medical Council Act. The approval that was required in so far as the institution is concerned, has preceded the issuance of statutory notification under Section 11(2) of the Act.

34. I am therefore, of the view that the stand taken by the University with respect to the two Medical institutions in the instant case that do not have a current approval of the Medical Council of India for the year 2009-10 is erroneous and misconceived. The said stand has been taken on a wrong appreciation of the statutory scheme.

35. The next ground that has been taken by the University to deny an extension of affiliation which is common to all the four institution is that the institutions had effected selection and admission of students with regard to the rules and regulations issued in that behalf by the University. Same contentions had been raised with regard to these institutions, during the previous year, i.e, 2008-09 and it was pointedly considered by the Division Bench in W.A.24172009. It is apposite to refer to paragraph 18 of the said judgment and it is profitable to extract the same.

We find considerable force in the submission of the learned senior counsel for the 1st respondent. Section 3(1) of Act 17/2004 reads as follows.

3. Procedure for admission into self financing professional colleges (1) Notwithstanding any thing contained in any law for the time being in force or in adjustment, decree or order of any Court or any other authority or in any agreement, the admission of students into a self financing professional college shall be made on the basis of merit as provided in Sub-sections (2) to (6).

Section 3 of the Act 19/2006 is as follows:

3. Method of admission in Professional Colleges or institution:- Notwithstanding anything contained m any other law for the tune being m force or any judgment, decree or order of any Court or any other authority, admission of students in all professional colleges or institution to all seats except Non-Resident Indian seats shall be made through Common Entrance Test conducted by the State followed by centralized counseling through a single window system in the order of merit by the State Commissioner for Entrance Examinations in accordance with such procedure as may be specified by the Government from time to time.

When the Regulations of the University were substituted by the Act 17/2004, which in turn was repeated by Act 19/2006 the striking down of the relevant provisions of Act 19/2006 will not resurrect the Regulations of the University. Further except making a general statement that the selection and admission shall be made only on the basis of the Rules and Regulations of the University, Government etc., nothing was specifically stated in Ext. P4. The University has also never alerted the 1 respondent's college, pointing out the method of selection it should follow, as a condition for continuance of the affiliation. Further, we notice that the method followed by the 1 st respondent's college for admission has, no the approval of this Court also. The Supervisory Committee beaded by Justice PA. Mohammed took actions against the Self financing Colleges, which followed similar methods for admission of students. While dealing with those matters, this Court, in effect, approved the method of admission based on the marks secured in the entrance examination as well as the marks secured in the relevant subjects of the qualifying examination/Though the learned Counsel for the University would point out that the University was not a party to those decisions, we notice that the statutory authority under Act 19/2006, which is to supervise the admissions, was a party to those proceedings. In the result, we notice that the man objection taken against the method of admission followed by the 1st respondent's college cannot be sustained in the absence of any valid rules governing the field.

36. The findings and observations of the Division Bench though rendered in the case of Medical institutions would apply in the case of an Engineering Colleges also. The aforementioned finding, in my view, is sufficient to hold that the second ground of rejection put forward by the university in its decision taken on 18.6.2009 is also unsustainable. But Mr. Sasidharan has made a reference to three other sets of regulations, which do not seem to have been specifically raised before the Division Bench in W.A. 241/09. I therefore, think it is necessary to refer to the said regulations also and the submissions made by Mr. Sasidharan on the basis of the same for the sate of completion.

37. Mr. Sasidharan has made a reference to Ext. R1(c) 'regulations', produced along ' with the counter affidavit filed in W.P. (C). 19591/2009. Ext R1(c) is an order issued by the Joint Academic Branch of the University of Calicut and issued on 4.3.2009. After referring to the meeting of two committees convened for the framing of regulations streamlined to the admissions to the Medical/Engineering and related courses, the order goes on to state the following:

The Committee recommended that criteria for selection and method of admission to merit/management seat for Medical/Engineering and related courses conducted by Government/Aided/Self-financing colleges affiliated to University of Calicut shall be governed by the rules/regulations framed by the Commissioner of Entrance Examinations or other competent authority appointed by the Government of Kerala in consultation with the University and without contravening with the stipulation of the apex bodies concerned (viz Medical Council of India, Dental Council of India, Indian Nursing Council, Central Council of Homeopathy, Central council of India Medicine, All India Council for Technical Education, Council of architecture etc.) In all matters related to selection and admission, the decisions of the University shall be final.

It was further decided that the students admitted by affiliated colleges violating the above regulations are not eligible for registration to University examinations and contravention of the above regulation shall lead to withdrawal suspension of affiliation.'

38. Mr. Sasidharan contends that the University has therefore, decided that the criteria for selection and method of admission to merit/management seats in the Medical/Engineering courses conducted by the Government/Aided/Self financial colleges affiliated to the University of Calicut shall be governed by the rules/regulations framed by the Commissioner of Entrance Examinations or other competent authority appointed by the Government of Kerala in consultation with the University and without contravening the stipulation of the apex bodies. It is contended that Ext R1(c) would therefore, indicate that the admission to all self financing colleges affiliated the University of Calicut shall be governed by the rules and regulations framed by the Commissioner of Entrance Examinations in consultation with the University. It is contended that admittedly the managements had followed their own procedure. They have not effected admissions, in the year 2008-09 or the years earlier, on the basis of a set of regulations framed by the Commissioner in consultation with the University and consequently a violation in this regard can be legitimately taken note of by the University in denying an extension of affiliation.

39. I am not impressed with the submission for more than one reason. Firstly, the relevant portion of Ext. R1 (c) which has been extracted above, contemplates rules/regulations framed by the Commissioner in consultation with the University to govern the admissions to the colleges affiliated to the Calicut University. Ext. R1(c), at best, would reflect a decision that is taken by the University to be governed by a set of rules to be framed by the Commissioner in consultation with the University, regulating the admission to the affiliated colleges of the University. Ext. R1(c) does not refer to any particular set of regulations which have been framed by the Commissioner in the manner contemplated therein. Nor is it a case of the University that Ext. R1(c) has followed a set of regulations as contemplated therein. Ext. R1(c), at best, would therefore, be a declaration of the decision that is taken by the University. It does not contain a set of rules, otherwise in existence and it does not contain a set of rules, intended to govern the. admissions to Self financing colleges affiliated to the University'. The petitioners cannot be blamed, for contravening the set of regulations which are yet to come into existence.

40. I also think it is necessary in this context to refer to the submission made by the learned Counsel for the petitioner on the basis of certain regulations framed by the University in the year 2004 and stated to be applicable to Self financing Engineering colleges. The same called as Engineering Degree Courses Regulations published by the University of Calicut, and stated to be applicable with effect from 2004 admissions are produced as Ext. P5 along with W.P. (C). 19599/2009. The conditions for admission to B. Tech Engineering degree courses is provided in the said regulations which reads as follows:

Conditions for admission.

Candidates for admission to the B Tech (Engineering) Degree Course shall be required to have, passed the Higher Secondary examinations of state Board of Kerala or examinations recognized equivalent there to by the any Universities of Kerala, with 50% marks in Mathematics and 50% marks in Physics, Chemistry and Mathematics put together. Candidates, belonging to Socially and Educationally Backward Classes with a total family annual income not exceeding the limit notified by the Government from time to time, need only 45% marks in Mathematics and 45% marks in Physics, Chemistry and Mathematics put together. Candidates belonging to scheduled caste and schedules tribe need only a pass in the qualifying examination.

They have to quality the Sate Level Entrance Examination conducted by the Commissioner for Entrance Examination or state level National Level Entrance Examination approved by the Government as equivalent. They shall also satisfy the conditions regarding age and physical fitness as may be prescribed b the University of Calicut.

41. Learned Counsel for the petitioner submits that if the aforementioned are treated as conditions for admission prescribed by the University then, the institutions in question have ensured that the students who are admitted to their institutions satisfied the conditions of eligibility. Admissions are effected to the petitioners institutions on the basis of merit assessed by aggregating the marks obtained by the candidate in the competitive examination conducted by the Commissioner of Entrance examinations and the marks in the qualifying examinations. Ranking is on the basis of inter se merit. It is ensured that the candidate has acquired the minimum eligible marks both in the entrance test conducted by the Commissioner as also in the qualifying examinations, I find force in the submission.

42. The procedure followed by the Medical institutions in the matter of effecting admissions, by determining inter se merit on the basis of marks obtained by the candidate in the qualifying examination and in the entrance examination conducted by the commissioner, has been referred to by the Division Bench in W.A. 241/09 and the contentions raised by the University that the method of admission followed by the institution in that regard is illegal, has been rejected as well.

43. There are two other sets of rules which have been relied on by Mr. Sasidharan. I will refer to them in the course of considering the contention that the colleges have contravened the statutory provisions in effecting appointment of teachers in the institution.

44. The next ground that has been put forward by the University in this regard is that the Management have violated the provisions contained in Statute 9(f) of Chapter 23 of the Calicut University First statutes, 1977, and that they have violated the undertaking given by them to the University at the time of granting affiliation that they will faithfully follow the provisions of the University Act. Statutes, ordinances, regulations and directions issued by the University from time to time and also admitted only such students who are eligible as per the regulations of the University. Statute 9(f) of Chapter 23 of the University First Statutes feads as follows:

9(f) - The Educational Agency/Management shall give an undertaking to the University to carry out faithfully, the provisions of the University Act, Statutes, Ordinances, and Regulations and the directions issued by the University from time to time, in so far as they are related to the college. The undertaking shall be endorsed by the Principal of the college.

45. It is contended that the Managements have violated statute 9(f) Chapter 23 of die University First statute. University essentially contends that the Managements have violated the undertaking given by them at the time of grant of provisional affiliation. I have already described in detail, in the preceding paragraph the contention of the University that the petitioner/institutions have admitted ineligible students. I have referred to the set of regulations relied on by the University in this regard, produced as Ext. R1(c). I have also referred to 2004 regulations, referred to by the petitioners, and governing the admissions to B. Tech degree courses. Apart from the fact that I have already found that the case put forward by the University in this regard is unsustainable, I have also referred to the findings and observations made by the Division Bench, with regard to the similar contention that was raised by the University, in the matter of procedure for admission that have been adopted by the Medical institutions, in W.A. 241/09. It is also significant to note that the Division Bench has also referred to earlier judgments of this Court, wherein the procedure for admission adopted by two of the institutions in question (which procedure is common to the other institutions also) and the finding of the Court on an earlier occasion that the said procedure is merit based and non exploitative. I also think it is significant that the University has not specified which clause in the undertaking that has been contravened and how the procedure of admissions adopted by the Universities has resulted in the contravention of any binding statutory rules and regulations.

46. The next common ground for rejection put forward by the University is that the teachers are selected and appointed by the petitioners in terms of the University Act, Statutes and Regulations, which is a condition mandated while granting recognition. Mr. Sasidharan refers to Section 2(7) of the University Act and points out that self-financing colleges is also a private college affiliated to the Calicut University. He refers to Clause 6 of the Calicut University First Statutes, which provides that in the case of a private engineering college, appointments to the teaching posts, including workshop staff shall be made by the educational agency only from a list of persons prepared by the selection committee according to the rank assigned by the committee. The constitution of the selection committee is also provided therein. Reference is also made to Section 68A of the Calicut University Act, which reads as follows:

68A. Special provisions in respect of unaided colleges - Notwithstanding anything contained in this Act or the statutes, Ordinances, Regulations, Rules, bye laws or orders-

(a). the scales of pay and other conditions of service of the teaching and non-teaching staff of unaided colleges and

(b). the admission and selection and fees payable by, students in such colleges, shall be determined, from time to time, by the Government on the basis of the recommendations of a committee constituted by the Government consisting of

(i). one of the Vice Chancellors of the Universities in the State, nominated by the Government;

(ii). the secretary to Government, Higher Education Department (who shall be the convenor of the committee); and

(iii), the Director of Collegiate Education.

47. It is contended that, therefore, it is open to the Government to determine the scales of pay and the other conditions of teachers and non-teaching staff of unaided colleges. The petitioner institutions are bound by any lawful directives that may be issued by the Government in that regard under Section 68(A) of the Act. They have appointed their own teaching staff without any reference to the University or the provisions of the Calicut University Act or the Calicut University First Statutes. The University is, therefore, entitled to take note of such statutory provisions and deny extension of affiliation, it is contended.

48. I have, in an earlier portion of the judgment mentioned that I will refer to another set of Rules, relied on by the learned Counsel for the University to substantiate his contention that the petitioner institutions have contravened the statutory provisions, both in the matter of effecting admissions in the institutions and in fixing the fee and collecting the same from the students. The question regarding applicability of those sets of rules, will be considered at this stage since certain aspects regarding applicability of the first statutes and the first ordinances, are common.

49. In the matter of admissions, learned Counsel for the University had referred to the Calicut University First Ordinances, 1978 in general and the particular provisions therein fixing the fee leviable in affiliated colleges as contained in Chapter 17 of the Calicut University First Ordinances. It is contended that indisputably, the petitioners institutions have been collecting fees from the students far in excess of the fees fixed in the table contained in chapter 17 of the First Ordinances and that the First Ordinances interdict a private college affiliated to the University from collecting fees in excess of what is fixed therein. Since they have collected fees according to their own determination they have violated the provisions of the First Ordinances, it is contended. I have already extracted Section 68A of the University Act and it is significant to note that the Section contains a non-obstante clause. It was brought in by the University Laws Amendment Act 9/95. Section 68 A became part of the Act on the introduction of Chapter 8 A in the Calicut University Act. It is a special provision in respect unaided colleges. The definition of a 'private college 1 under Section 2(16) of the Calicut University Act would include a college maintained by an educational agency and it might include a self-financing college; which is affiliated to the University. But, it is relevant to take note of the fact that the legislature itself, in its wisdom, was of the opinion that the existing provisions in the statutes, ordinances, regulations, rules, bye-laws or orders framed under the Calicut University Act, undoubtedly providing for the scales of pay and other conditions of service of the staff and also providing for admissions, selection and fees payable by students in affiliated colleges cannot be considered as comprehensive of unaided colleges as such. This would be patently obvious when one goes by the Scales of pay fixed in Chapter 17 of the University First Ordinances. It does not require an elaborate process of ratiocination to note that the scale of fees prescribed therein would be totally inapplicable to a Self-financing Professional Colleges. It is relevant to note that even in the case of merit seats in Government colleges, the scale of fees now fixed for professional courses would be vastly higher than the fee fixed in Chapter 17 of the First Ordinances.

50. It is thus, that the legislature thought it necessary to incorporate Section 68(A) in the Calicut University Act as a plenary provision forming the source of power to issue regulations in the matter of scale of pay and other conditions of the teaching staff and admission and selection of staff in unaided colleges. But the power to frame such rules is conferred on the Government and not on the University.

51. It is not the case of the University that subordinate rules have been framed in terms of Section 68(A) of the Act. Obviously, neither the First Statutes nor the First Ordinances can be sourced to Section 68A of the Act. Both of them were enacted well prior to the introduction of Section 68A in the Act. Nor has my attention been invited to any amendment to the First Ordinances and First Statutes, specifically relatable to the Self-financing Colleges, brought in subsequent to the introduction of Section 68A of the Act.

52. I am, therefore, of the view that the provisions in the University First Statutes, as regards the procedure for appointment of teachers in colleges and the provisions in the First Ordinances fixing the fees payable by the students in such colleges will have to be treated as inapplicable to unaided colleges especially Self-financing Colleges. In that view of the matter, the stand taken by the University that the petitioners have contravened the provisions of the Calicut University First Statutes and the Calicut University First Ordinances in the matter of appointment of teaching staff hi the colleges and in the matter of effecting admissions and in determining the fees payable by the students is unsustainable.

53. In this context, I also think it is appropriate to refer to the submission by me learned Counsel for the petitioners that in the matter of admission and determination of fees, there are at present no binding statutory regulations which, as such, regulate the said process in Self-financing Colleges. The contention is inter alia rested on the fact that the legislating had brought into force the Kerala Self-Financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act, 2004.

54. Section 3 of the 2004 Act prescribes the procedure for admission into self-financing professional colleges and Section 4 of the same provides for the determination of the fees. A format completely different from the procedure for admission in aided colleges was provided for in the 2004 Act. Both Sections 3 and 4 of the said Act contains a non-obstante clause, overriding as it were, any other rules having the force of law, prevailing at that point of time. It is contended that the legislature had, therefore, evinced its intention to supersede any rule or regulation providing for the procedure for admission and determination of fees in so far as they may apply to Self-financing Colleges, by the provisions enacted in the plenary legislation.

55. 2004 Act was repealed by the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 vide Section 20 thereof. No doubt, certain crucial provisions in the 2006 Act were struck down by a Division Bench of this Court in Lisie Medical and Educational Institution v. State of Kerala 2007 (1) KLT 409. But the said Act, as such, survives. The regulations which were prevailing prior to the 2004 Act, if, purported to govern Self-financing Colleges in the matter of appointment and determination of fees was either superseded or rendered inapplicable qua Self-financing Colleges by enactment of 2004 Act and the said position in law continued by the enactment of 2006 Act. These regulations cannot be considered as either re-surfaced of resurrected either by reason of the repeal of 2004 Act or by reason of certain provisions of the 2006 Act having been declared as unconstitutional. Both the procedure for admission and determination of fees made under the University First Statutes and the First Ordinances are inconsistent with the statutory format brought about by the 2004 Act and the 2006 Act and therefore, they cannot be applied to the Self-financing Colleges. New Rules or Regulations, applicable to Self-financing Colleges can be framed only in terms of Section 68A of the University Act and that has not been done hitherto.

56. This aspect, though not elaborately, had been considered by the Division Bench in W.A. No. 241/09.

57. I find force in the said submission. The plenary legislature while enacting 2004 Act was obviously intending to provide for a different format in the matter of appointment and fixation of fee in Self-financing Colleges. May be, the procedure as provided in the said statute was not brought into vogue. But the effect of the provisions contained in the said enactment, by operation of law will have to be accepted. Anything inconsistent with the format provided under the 2004 Act in the matter of admission and fixation of fee, in Self-financing Colleges should be held to be impliedly repealed by the Self financing Colleges or superseded by the application of Doctrine of supersession, which is only another facet of the Doctrine of implied repeal. The situation continued with the repeal of the 2004 Act, contemporaneous to the enactment of 2006 Act I am, therefore, of the view that any subordinate rules or regulations framed under the Calicut University Act prevailing prior to the enactment of 2004 Act, should be treated as rendered inapplicable to the case of Self-financing Colleges, by the enactment of the 2004 Act and thereafter by the 2006 Act and any such regulations providing for a different format in the matter of selection and admissions in Self-financing Colleges, inconsistent with the plenary law mentioned above, should 1 be treated as impliedly repealed insofar as Self-financing Colleges are concerned.

58. Once this position is accepted, it will also have to be mentioned that the right to establish and run an institution as Self-financing Colleges has been recognised and protected under Article 19(1)(g) of the Constitution by the Constitution Bench of the Supreme Court in TMA Pai Foundation v. State of Karnataka : 2002 (8) SCC 481. The right of such institutions to establish their own format in the matter of admissions to the colleges and fixation of fee subject to such method being non-arbitrary, non-profiteering, fair and reasonable has also been upheld, (para 40, 41 and 43 of the judgment in TMA Pai Foundation).

59. What remains are the grounds of rejection which are applicable only in the case of Medical Colleges. I will now proceed to consider the same.

60. It is stated that the Amala Institute of Medical Sciences, Thrissur and the Jubilee Mission Medical College, Thrissur, have not prescribed tie up with Primary/Community Health Centres for training of students and there are no facilities for training students for Post Mortem examination as per the Inspection Commission Report.

61. Learned Counsel for the University Mr. Saisidharan submits that the students of these colleges are taken for training for Post Mortem to the Bangalore Medical College. They do not have their own tie up with Primary/Community Health Centres.

62. Learned Counsel for the petitioner submits that the institutions have a Primary/Community Health Centres for training all students. Training in Post Mortem Examination is given to the students in a different centre. In doing so, the institutions have not, contravened any of the conditions for approval given by the Medical Council of India and therefore, the same cannot constitute a ground for rejection the extension of affiliation.

63. One aspect which is relevant in considering this contention, is that the same is related to the existence of adequate facilities in the Medical institutions, both in the matter of tie up with the Primary/Community Health Centres and also in the matter of training students for Post Mortem examination. It cannot be gainsaid that these are aspects which obviously falls for scrutiny by the Medical Council of India. In other words, it is a Central Regulatory Body, which will have to assess the adequacy of the facility in the Medical institutions and then take a decision as to whether the qualification obtained by a student prosecuting his study from these institution's can be recognised for the purpose of Section 11(2) of the Medical Council of India Act. The opinion given by the Medical Council of India, cannot but be of primordial importance in this matter. If the University feels that any specific aspects, regarding the facilities given in these institutions which are approved by the Medical Council of India, has not been correctly assessed by the Medical Council of India, or that there is gross disparity in the assessment made by the Central Regulatory Body and the University or that the approval given by the Central Regulatory Body is vitiated by any fraud practised by the Institution, exercise by the institution, then it would be open to them to bring such aspects to the notice of the Medical Council of India and the seek further action. A different view as regards the existence of facilities in the institutions, at variance from the assessment made by the Medical Council of India and accepted by the Central Government for the purpose of Section 11(2) of the Medical Council of India Act cannot afford a justification for continuing affiliation to be approved institution. I am, therefore, of the view that the said ground put forth by the University in justification of its stand is also unsustainable.

64. The next ground, which has been put forth by the University as regards the Medical Colleges is that the candidates ineligible for admission as per the Rules of the University/Government/Medical Council of India were admitted and permitted to undergo the course of study and presented for the University Examinations. As rightly pointed out by the learned Counsel for the petitioners, this aspect has been squarely considered by the Division Bench in W.A. No. 241/09 and found against the University. The same contention Cannot again be resurrected by the University.

65. What remains is only the contention taken as regards Sahrudaya College of Engineering to the effect that they did not co-operate with the Inspection Commission appointed by the University. I am afraid, this contention is also not available at this stage in the light of Ext.P6 judgment in W.P.(C)No. 17643/08 wherein a learned Judge of this Court has squarely considered the contention and rejected in the years 2007-08 and 2008-09.

66. Since I have undertaken an elaborate discussion of the issues, I consider it advantageous to summarize my conclusions as hereunder.

(i). The petitioners in Writ Petition Nos. 19599/2009 and 19600/2009 namely Sahrdaya College of Engineering & Technology and Jyothi Engineering College have been approved by the AICTE for the year 2009-10 as well.

(ii). The stand taken by the University that these two colleges are not entitled to an extension of affiliation for the year 2009-10 on the ground that they do not have a current approval from the AICTE is untenable and unsustainable.

(iii). The petitioners in Writ Petition Nos. 19591/2009 and 19604/2009, the Amala Institute of Medical Sciences and Jubilee Mission Medical College are recognized Medical Institutions in that behalf by the Medical Council of India and the Central Government. The degrees obtained by the students from these two institutions are treated as recognized medical qualifications by the Central Government in terms of Section 11(2) of the Medical Council Act, 1956,

(iv). Consequently, there is neither a necessity nor a provision in the Medical Council Act for an yearly approval of these two Medical Institutions. His stand taken by the University that these two Medical institutions are therefore, not entitled to an extension of affiliation for the year 2009-10 because they do not have an approval from the Central Government for the year 2009-10, is untenable and unsustainable.

(v). The provisions in the Calicut University First Statutes providing for the constitution of the selection committee for appointing teaching staff in affiliated colleges, are inapplicable to the case of Self financing colleges affiliated to the University. Consequently the stand taken by the University that these Institutions have contravened the provisions of the University statutes or regulations in the matter of effecting appointment in their colleges is untenable and unsustainable.

(vi). Ext. R1 (c) order dated 4.3.2009 contains only a decision by the University that the method of admission to Self financing colleges shall be governed by the rules/regulations framed by the Commissioner in consultation with the University. Ext. Rl(c) by itself does not contain the rules and it can only be treated as a proposal on the part of the University to frame such rules. No rules have been framed pursuant thereto.

(vii). The provisions relating to method of admission and determination of fees as contained in the Calicut University First Ordinances, 1978, are inapplicable to the case of Self financing colleges.

(viii). The power to frame any rules, providing for the determination of procedure for admission and determination of fees in Self financing colleges is available to the Government in terms of Section 68A of the University Act and the Government has not framed any rules in exercise of its powers under Section 68A of the Act so far.

67. The grounds stated by the University as contained in minutes of the meeting of the Syndicate held on 18.6.2009, for denying extension of the affiliation to the petitioners are untenable and unsustainable.

68. For all these reasons mentioned above, I am of the view that the petitioners are entitled to succeed. The decision taken by the Syndicate of the Calicut University on 18.6.2009, (Ext.P4 in Writ Petition No. 19599/2009), is quashed. University is directed to extend the affiliation for all the petitioners, for the year 2009-10 and orders in this regard shall be passed within two weeks from the date of receipt of a copy of this judgment. Petitioners are entitled to proceed further in the academic year 2009-10 in consequence of the relief granted herein;

Writ petitions are allowed.


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