Kerala High Court · 2009

W.P.(C).19599/2009 & Connected Cases5over 50% of the seats in Private Self FinancingProfessional Colleges. According to them, the KeralaProfessional Colleges or Institutions (Prohibition ofCapitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equityand Excellence in Professional Education) Act, 2006,(hereinafter referred to as the Professional Colleges Act)was enacted to take over 50% of the seats in thoseColleges to be filled up through Government machinery,at the rates fixed by the Government. Substantiveprovisions of the said Act were struck down by a DivisionBench of this Court in Lisie Medical and EducationalInstitution v. State of Kerala (2007 (1) KLT 409).The institution was affiliated to the University of Calicutand the affiliation was being extended on an year to yearbasis. But invariably the order of affiliation was givenonly in the course of the academic year and this was thecase in almost all the institutions. There is a contentionraised by the Colleges to the effect that the Managementof these institutions have been singled out fordiscriminatory treatment by the Government since they W.P.(C).19599/2009 & Connected Cases6come under a common umbrella, viz. the Kerala ChristianProfessional College Managements Federation. TheChristian Managements have resisted the pressuresexerted by the Government and the University and havefollowed a fair, transparent and merit based method ofselection. The Association comprises 10 CatholicEngineering Colleges in Kerala (and two Medical Collegeswhich are the petitioners in the other two writ petitions).Admissions have been based on a common prospectusissued by the Association. Management quota has beenabolished in these colleges. Capitation fees has beenprohibited. It is contended that merit is the only basis forthe admission and accordingly, the marks obtained by thecandidates in the Common Entrance Test conducted bythe State and the marks obtained by the candidates in thequalifying examinations have been adopted as the basisfor determining the merit. It is contended that theUniversity thereafter, embarked upon a series ofmeasures against the four Colleges coming within theirjurisdiction and this was because the Associations did notyield to Government's pressure. The students were notpermitted to appear for the successive exams thereafter, W.P.(C).19599/2009 & Connected Cases7and thus, a difficulty was faced for several semesterexams. It was by Ext.P6 judgment, that this Court haddeclared that the Colleges must be treated as havingprovisional affiliation till a contra decision is taken ontheir applications. Though the University filed an appealagainst the said judgment (Ext.P6), appeals have not beenadmitted, but ordered to be posted for hearing. Petitionerhad applied for extension of affiliation for 2009-10 on20.3.2009. (in the case of the other Engineering College -the petitioner in W.P.(C).19600/09 had applied on24.2.2009). Nothing was heard from the University on thesaid application (Ext.R1(b)). The University was bound totake a decision on the question of continuance of theaffiliation or confirmation of affiliation as the case maybe, by 31.3.2009. It was not done. The ManagementAssociation had issued an advertisement in all the editionsof Malayala Manorama, Deepika and The Hindu, callingfor applicants to the ten Engineering Colleges comingunder the Management Association. A commonprospectus was issued by these Colleges. Petitionercontends that immediately thereafter, a news itemappeared in the newspapers warning the public that no W.P.(C).19599/2009 & Connected Cases8students should take an admission in the colleges whichdo not have continued affiliation. Names of thepetitioner's colleges were not included in the Universitywebsite. News item referred to a press release by theUniversity in this regard as evidenced by Ext.P2. It seemsthat the press release came about on the day followingthe issuance of a notification by the Association calling forapplications from interested students for admission toB.Tech course for the year 2009-10.7.A news item was flashed on 18.6.2009 that thepetitioner's College and three other colleges affiliated tothe Calicut University would have no affiliation for 2009-10. Petitioner requested the University to give a copy ofthe decision taken. It was not done. Petitionerapproached this Court for a direction to the University togive a copy of the decision taken on 18.6.2009. Ultimatelythis Court issued a direction to the University to give acopy of the decision on or before 3.7.2009. Universityeven took up the matter in appeal. Ultimately, Ext.P4decision was communicated to the petitioner and it is thisdecision taken by the University as evidenced by Ext.P4 W.P.(C).19599/2009 & Connected Cases9that has been challenged in the writ petition.8.Nine reasons given in Ext.P4 to deny continuance ofaffiliation or deny a grant of affiliation for the year 2009-10 have been challenged by the petitioner. To avoidrepetition, I will refer to these contentions after narratingbare facts relating to the Medical Institutions.9.The petitioner in W.P.(C).19591/2009 is a Medicalinstitution. The contentions mentioned in relation to thepetitioner in W.P.(C).19599/2009, as regards the allegedsteps taken by the University against the ChristianManagement institutions, have been repeated by thepetitioner in this case also. I will avoid repetition of thesame for the sake of brevity. But as stated at the outset,this Court had in Jubilee Mission Medical College andResearch Institute v. University of Calicut (2008 (4)KLT 966) declared that the Medical institutions in thesecases shall be treated as having had affiliation for theyears 2007-08 and 2008-09 and had further directed thatthe results of the examinations taken by the students of W.P.(C).19599/2009 & Connected Cases10the petitioner's colleges shall be published. This wasaffirmed by the Division Bench by Ext.P10 judgment dated13.3.2009. Petitioner was also served with a copy of thedecision taken by the Syndicate of the Calicut Universityon 18.6.2009 only after it had approached this Court andan order was issued in that regard. Petitioner haschallenged each one of the reasons given in the saiddecision taken on 18.6.2009 (Ext.P5) for denying itaffiliation for the year 2009-10.10.I consider it advantageous to categorise commonissues which arise for consideration in these four casestogether and then deal with the issues which are peculiarto Medical institutions on one hand and the EngineeringColleges on the other. Reasons given by the University todeny grant of provisional affiliation for the year 2009-10are the following:-(i).The application for affiliation is notaccompanied by the permission/approvalby the AICTE (or MCI as the case may be)for extension of approval for W.P.(C).19599/2009 & Connected Cases11continuation of the course for the year2009-10.(ii).The continued provisional affiliationfor the year 2006-07 was granted with aspecific condition that “the selection andadmission shall be made on the basis ofthe rules and regulations of theUniversity/Government and on the basisof the directions issued by theUniversity/Government from time totime, failing which the affiliationgranted will automatically be cancelled”and the Management has violated theabove condition.(iii).The Management violated theprovisions contained in statute 9(f) ofChapter 23 of the Calicut University Firststatutes, 1977, (hereinafter referred toas the 1st statute). The Managementviolated the undertaking given by themto the University at the time of grant ofaffiliation to the effect that they willfaithfully follow the provisions of theUniversity Act, statutes, ordinances,regulations and directions issued by theUniversity from time to time and also W.P.(C).19599/2009 & Connected Cases12admit only such students who areeligible as per the regulations of theUniversity.(iv).These Management violated rulesand relevant provisions of the ordinancesof the University/Government and AICTE(or MCI as the case may be) in thematter of selection and admission ofstudents and collection of tuition fee andother fees leviable from students.(v).The teachers are selected andappointed not in terms of the UniversityAct, statutes and regulations, which is acondition mandated while grantingrecognition.11.I will deal with the two reasons given in relation tothe Medical colleges and one aspect which is peculiar toSahrdaya College of Engineering, after I deal with thecommon issues.12.But before I deal with the above contentions, itwould only be appropriate to deal with a preliminaryobjection raised by Mr.P.C.Sasidharan as regards the W.P.(C).19599/2009 & Connected Cases13maintainability of the writ petitions.13.All these writ petitions have been filed on 13.7.2009and they challenge the decision taken by the Syndicate ofthe Calicut University on 18.6.2009 (Ext.P4 in the case ofEngineering Colleges and Ext.P5 in the case of Medicalinstitutions). It is their contention that the said decisionitself was not supplied to them in spite of their requestand they had to approach this Court to get a copy of thedecision taken by the Syndicate on 18.6.2009. This Courthad directed the University to supply a copy of the saiddecision taken by the Syndicate on 18.6.2009, on orbefore 3.7.2009. It is the case of the petitioners that thesaid direction itself was taken up in appeal before a Benchof this Court. It was ultimately only thereafter, that thedecision was actually communicated. As stated above, thewrit petitions were filed on 13.7.2009 and they came upfor admission on the same day. The Standing counsel wasrequested to get instructions and accordingly, they wereposted on 16.7.2009. On the said day, the counsel for theUniversity submitted that a short counter affidavit is beingfiled. Writ petitions were therefore directed to be posted W.P.(C).19599/2009 & Connected Cases14on 20.7.2009. On the very same day, the counsel for theUniversity had also submitted that the standingcommittee of the Syndicate met on 16.7.2009 and theSyndicate was scheduled to meet on 18.7.2009. Hefurther submitted that it will be open to the petitioners todepute an authorized representative to make arepresentation to the Syndicate, if they are advised to doso and such representation shall be considered by thestanding Committee and the views of the Committee shallalso be placed before the Syndicate scheduled to meet on18.7.2009. This Court had made it clear that the decision,if any, taken by the Syndicate after a reference to therepresentation to be submitted by the petitioners, aspermitted by this Court would also be ascertained by thelearned Standing Counsel for the University and broughtto the notice of this Court by 20.7.2009. This Court hadpermitted the petitioners to file a representation andmeet the Registrar on 17.7.2009. But it was further madeclear that the representation if any, by the petitioners anda consideration of the same by the standing Committee bythe Syndicate, shall be without prejudice to thecontentions of either side in the writ petition. The W.P.(C).19599/2009 & Connected Cases15Syndicate had then taken another decision on 18.7.2009and an order was thereafter issued by the University on22.7.2009 produced as Ext.R1(e) in W.P.(C).19599/2009(and in other cases as well). Ext.R1(e) reflects aunanimous resolution of the Syndicate that thecontinuance of the provisional affiliation of the collegesneed not be granted but also refers to the decision takenby the Syndicate on 18.6.2009, which has been impugnedin these writ petitions. Representations were filed by thepetitioners as permitted by this Court on 16.7.2009 aswell. It is contended by the learned counsel for theUniversity that ultimate decision by the University is thatwhich is reflected in Ext.R1(e) dated 22.7.2009. There isno challenge to the said decision in these writ petitions.What is challenged in these writ petitions, he contends, isonly an unconfirmed minutes of the meeting of theSyndicate held on 18.6.2009. This decision by itself doesnot have any consequences. The substance of thecontention taken is that the writ petition does not mounta challenge, as it were, against the University order dated22.7.2009 and therefore, unless such a decision ischallenged and the challenge is upheld, no direction can W.P.(C).19599/2009 & Connected Cases16be issued to the University in the matter of grant ofaffiliation as sought for by the petitioners.14.As I stated, this contention was pursued vehementlyby the learned counsel for the University. Therefore, Ihave anxiously considered the same. I am afraid that thecontention is a technical one and is essentially related tothe form and not the substance of the issues which aregermane for consideration.15.The minutes of the meeting of the Syndicate on18.6.2009 does not show that it is an unconfirmed or aprovisional decision. Reasons given by the Syndicate ofthe University to deny grant of affiliation for theseinstitutions for the year 2009-10 are spelt out in theminutes 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 writpetition is rested on the alleged violation of the principlesof natural justice. Apparently, the submission made onbehalf of the University on 16.7.2009 and recorded in theorder passed on the said date, enabling as it were a W.P.(C).19599/2009 & Connected Cases17representative of the institution to make a representationagainst the decision of the Syndicate taken on 18.6.2009must have been made realising the gravity of thecontention that the decision taken on 18.6.2009 was inviolation of the principles of natural justice and alsorealising the possibility of the decision being set atnaught by this Court on judicial review. The petitionershad made a detailed representation against each one ofthe grounds, as permitted by this Court. All that theyrequired at that point of time was an opportunity topursue the contention that the decision taken by theUniversity was, among others in violation of principles ofnatural justice. In substance, the grounds for denyingaffiliation as contained in Ext.R1(e) dated 22.7.2009 isonly a reiteration of what has already been expressed on18.7.2009. Significantly, the Syndicate which met on18.7.2009 had only confirmed its minutes of the meetingheld on 18.6.2009. Petitioners had to approach this Courtfor even a copy of the decision taken by the Syndicate andit is difficult to ignore the irrefutable fact that theUniversity had even challenged an order passed by thisCourt to give a copy of the decision to the petitioners. Be W.P.(C).19599/2009 & Connected Cases18that as it may, these writ petitions have been filed on13.7.2009, after a receipt of the copy of the decisiontaken on 18.6.2009. The grounds taken for denyingaffiliation are being considered on merits and thedecision making process of the University has also beensubject to judicial review. This Court exercising powersunder Article 226 of the Constitution of India is primarilyconcerned with the substance of the contentions of theparties and not with technical aspects which really do nothave a bearing on the merits or demerits of the decisionthat is subjected to judicial review. I find no substance inthe preliminary objection raised on behalf of therespondents.16.I shall now consider the legality and correctness ofthe reasons given by the University, as contained in theminutes of the meeting of the Syndicate held on18.6.2009. I should again take note of the fact that thesame reasons have been repeated in Ext.R1(c)proceedings issued by the University on 22.7.2009. I shallfirst deal with those issues which are common to all thefour institutions and then deal with the individual issues W.P.(C).19599/2009 & Connected Cases19applicable to the Medical institutions or the EngineeringColleges as the case may be.17.The first common ground which has been stated bythe University is that the application for affiliation is notaccompanied by the permission/approval of theAICTE/MCI for extension of approval for continuation ofthe course for the year 2009-10.18.This issue has different connotations in the case ofEngineering Colleges on one hand and the Medicalinstitutions on the other. Therefore, I will deal with thisissue in the context of the statutory provisions that areapplicable to Engineering Colleges and MedicalInstitutions.19.But first I think it is appropriate to take note of thecontentions raised by the learned counsel for thepetitioner that literally understood, the reason put forthby the University, in this context namely that theapplication for affiliation was not accompanied bypermission/approval by the AICTE/MCI has no legitimate W.P.(C).19599/2009 & Connected Cases20legs to stand on. Reference is made to Chapter 23 of theUniversity First Statutes and the provisions containedtherein dealing with the submission of an application foraffiliation. The provisions contained in the First Statutes,Chapter 23, essentially are relatable to the process to beundertaken in the matter of obtaining affiliation from theUniversity for the first time. The concept provisionalaffiliation is not ex facie discernible from the statutoryregulations. But it cannot be gainsaid that the Universityhas the power to grant affiliation for a limited period inthe first instance and then renew the same from year toyear. It is accordingly that the provisional affiliation wasgranted in the case of these colleges for one year in thefirst instance and the said provisional affiliation wasextended till the year 2006-07. In the case of Medicalcolleges, this Court had in the case of Jubilee MissionMedical College and Research Institute v.University of Calicut (2008 (4) KLT 966) declaredthat the Colleges must be deemed to have provisionalaffiliation for the years 2007-08 and 2008-09. In the caseof Engineering Colleges, a similar declaration was granted W.P.(C).19599/2009 & Connected Cases21by this Court, with a slight difference that the period ofprovisional affiliation was directed to be operative till theUniversity takes a decision. In substance, the directionissued by this Court is operative uniformally as regardsall the four colleges.20.I find force in the submission made by the leanedcounsel for the petitioner that there is no prescribedformat for an application for extension of provisionalaffiliation nor is their any statutory provision whichcompells the applicant to produce a copy of approvalgranted by the Central Authority namely the AICTE/MCIas the case may be, for the year in relation to whichextension of affiliation is sought, along with theapplication to be considered by the University. If that beso, then the reason given by the University in this regardnamely that the application for affiliation was notaccompanied by permission/approval by the AICTE for theyear 2009-10 is misconceived. It has no basis in thestatutory provisions regulating the actions of theUniversity in this regard. W.P.(C).19599/2009 & Connected Cases2221.Learned counsel for the University submits that insubstance the objection is that there is no material onrecord to show that the Central Regulatory Body hasgranted permission/approval for the continuance of thecourses in question, for the year 2009-10. The contentionis therefore, one qua the substance of the matter and notregarding the form. I have proceeded to consider the saidcontention on merits.22.In so far as the Engineering colleges are concerned,I will refer to the documents placed on record in the caseof W.P.(C).19599/2009 and the same would apply in thecase of the other Engineering college also. Ext.R1(a)produced by the University is the extension of approvalgranted 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 acommunication from the AICTE addressed to the PrincipalSecretary to Government, Higher Education Departmentintimating the extension of approval by the Council to thepetitioner/College for the year 2008-09. The said order ofapproval, Ext.P8, contemplates the institutions filing a W.P.(C).19599/2009 & Connected Cases23compliance report with the requisite processing fee everyyear by the 31st of August irrespective of the period ofapproval. It is further stated that the approval is subjectto rectification of the observations/deficiencies/specificconditions by 31st of August, 2008. According to thepetitioner, the compliance report was forwarded by it tothe AICTE within the time stipulated and the approval wasextended for the year 2009-10 also and this fact isevidenced by the information posted by AICTE in itswebsite titled “status of approval for AICTE approvedEngineering and Technological institutions for the year2009-10”. Both the Engineering Colleges are included inthe 'status information' posted by the AICTE in its websiteand the information relates to the courses which areapproved for the institution in question, along with theapproved intake for the year 2008-09 and the approvedintake for the year 2009-10. It is the case of thepetitioner pleaded in the writ petition that an extension ofthe order of approval for the year 2009-10 in the printedform has not been issued to any one of the approvedinstitutions and that it will normally be issued only inMay-June-July. It is further asserted therein that the W.P.(C).19599/2009 & Connected Cases24extension of the approval, will be evidenced by theinformation posted by the AICTE in its website and aphysical copy of the said information downloaded from thewebsite was lated produced by the petitioner as Ext.P5and it is to this, I have made a reference. Materials onrecord do not suggest any ambiguity as regards theexistence of current approval by the AICTE.23.Mr.P.C.Sasidharan submits that the University is notbound to take note of the information allegedly posted bythe AICTE in its website and it is entitled to insist that anorder similar to Ext.R1(a) or Ext.P8 as the case may be,for the year 2009-10 should be produced by the institutioneither along with the application for extension of approvalor at least before the University took a decision in thisregard. I am not impressed with the submission nor issuch requirement spelt out by the statute, which governsthe processing of the application for affiliation. At anyrate, the question is whether there is in existence,current approval by the AICTE, qua the institution inquestion, for the courses which are legitimately offeredtherein. Indisputably there is an order of approval in the W.P.(C).19599/2009 & Connected Cases25printed form till and inclusive of the year 2008-09. Thereis evidence of approval having been extended by theAICTE for the year 2009-10, signified by the informationposted by the said authority in its website. University hasno case that the said information is incorrect or thatthe information available from the website of AICTE iswrong or fabricated. In fact, if there is such a suspicionlurking in the mind of the University, it was alwayspossible for them to seek a clarification from the AICTE.I also think it is appropriate to refer to the fact that thepetitioner had, in the notice of hearing submitted asExt.R1(c) as permitted by this Court by the interim orderdated 16.7.2009, not only asserted the existence ofcurrent approval by the AICTE for the year 2009-10 buthad also enclosed a physical copy of the informationdownloaded from the website along with their hearingnote. There is no assertion by the University that theinformation so furnished is wrong and has been soverified. In the circumstances, the irresistibleconclusion that will have to be legitimately drawn is thatAICTE has approved the petitioner institutions, for theyear 2009-10 as well. W.P.(C).19599/2009 & Connected Cases2624.In so far as the Medical Colleges are concerned, thestatutory framework related to approval of the institutionby the Central Regulatory Body is provided for by theMedical Council Act and the regulations framedthereunder. It is apposite to refer to Section 10A andSection 11 of the Indian Medical Council Act, 1956, in thisregard. Section 10A(1) is relevant and is extractedherein.Notwithstanding anything contained in this Actor any other law for the time being in force -(a).no person shall establish a medicalcollege ; or(b).no medial college shall -(i). open a new or higher course ofstudy or training (including a post-graduate course of study or training)which would enable a student of suchcourse or training to qualify himselffor the award of any recognizedmedical qualification or(ii). increase its admission capacity inany course of study or training(including a post-graduate course of W.P.(C).19599/2009 & Connected Cases27study or training)except with the previous permissionof the Central Government obtainedin accordance with the provisions ofthis section25.Thus, a Medical College can be established by aperson only with a previous permission of the CentralGovernment, obtained in accordance with the provisionsof Section 10A. Sub Section 2 of Section 10 provides thata person shall, for the purpose of obtaining permissionunder Section 10A(1), submit to the Central Governmenta scheme in accordance with the provisions of Section10A(2)(b), and the scheme shall be referred to theMedical Council which shall then give itsrecommendations. Central Government, after obtainingthe particulars as may be considered necessary from theperson or college concerned, either approve or disapprovethe same. If the Scheme is approved, it is then taken as apermission under Section 10A(1) of the Act. MedicalCouncil is called upon to consider a scheme and give itsrecommendations having regard to the aspectsmentioned in Section 10A. W.P.(C).19599/2009 & Connected Cases2826.Section 11 of the Act deals with recognition ofMedical qualifications granted by Universities or Medicalinstitutions in India. It reads as follows.Recognition of medial qualificationsgranted by Universities or medicalinstitutions in India – The medicalqualifications granted by any University ormedical institution in India which are includedin the First schedule shall be recognizedmedical qualifications for the purpose of thisAct.27.In so far as the Medical institutions in the presentcase are concerned, a Scheme submitted by them wasrecommended by the Medial Council. Indisputably theywere granted approval, from year to year till and inclusiveof 2008-09. It seems that the 1st batch of MBBS studentsfrom the two medical institutions in question had passedout in the year 2008. It is on record that a MedicalCouncil had inspected the two medical institutions inNovember 2008 for the purpose of verifying whether an W.P.(C).19599/2009 & Connected Cases29approval can be granted for the award of MBBS degree, tothe students who pass out from the two institutions. TheCouncil inspector's report was considered by theExecutive Committee of the Medical Council and theirrecommendations are contained in Ext.P7 which reads asfollows.“I am to state that the General Body of thisCouncil at its meeting held on 1.3.2009considered the Council inspectors report (27thand 28th November 2008) for approval ofJubilee Mission Medical College & ResearchInstitute, Thrissur for the award of MBBSdegree granted by Calicut University and theCouncil approved the followingrecommendations of the ExecutiveCommittee/Adhoc Committee:-“The members of the AdhocCommittee appointed by theHonourable Supreme Court andof the Executive Committee of theCouncil decided to recommendthat Jubilee Mission MedicalCollege & Research Institute,Thrissur be approved for the W.P.(C).19599/2009 & Connected Cases30award of MBBS degree grantedby Calicut University, Kottayamwith an annual intake of 100 (Onehundred) students per year.”In view of the above, I am directed to requestyou to issue a necessary notificationrecognizing Jubilee Mission Medical College &Research Institute, Thrissur for the award ofMBBS degree granted by Calicut University onor after November 2008 in this regard.”28.What took place thereafter is a procedure which isprovided for under Section 11(2) of the Act and therecommendations of the Medical Council was accepted bythe Central Government which issued a notification underthe 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 MedicalCouncil Act, 1956 the Central Governmentafter consulting the Medical Council of India,hereby makes the following furtheramendments in the First Schedule to the said W.P.(C).19599/2009 & Connected Cases31Act, namely -In the said First Schedule against “CalicutUniversity, Calicut” under the heading'recognized Medical Qualification' (in column(2) and under the heading 'Abbreviation forRegistration” 9in column (3) the followingshall be inserted namely.Bachelor Medicine andMBBSBachelor of SurgeryThis shall be a recognized medical qualification when granted by Calicut University, Calicut on or after November 2008 in respect of students being trained at Jubilee MissionMedical College and Research Institute, Thrissur Kerala.29.Learned counsel for the petitioner contended that anyearly approval of the Medical Council, is contemplatedonly till such time as steps taken as contemplated underSection 11(2) of the Act are completed. Once the degreeawarded to the students who passed out from theinstitution in question is recognized as a qualification interms of Section 11(2) of the Act, then a further renewalof the approval is not contemplated. This processevidenced by a notification under Section 11(2) of the Act W.P.(C).19599/2009 & Connected Cases32amounts to what is called as a permanent recognition ofthe institution in question. Institutions have been inexistence for the past more than five years and a renewalof the approval of the institution for each year has beenmade by the Central Body after an inspection of thefacilitates. An inspection report will be forwarded everyyear. Ultimately an inspection was conducted at the timewhen the 1st batch of students took their final year MBBSexaminations and the adequacy or otherwise of thefacilities provided in the institutions was assessed. It isafter referring to the recommendations made by theMedial Council that the Central Government decided toapprove the degree offered from the institutions inquestion. Neither the Medial Council Act nor theregulations framed thereunder contemplates a furtherrenewal of the approval of the Medial institution.30.Mr.Alexander Thomas learned counsel appearing forthe Medial Council of India took me through theprovisions of Medial Council Act and the regulations. Hefurther submitted that the Medial Council has hitherto W.P.(C).19599/2009 & Connected Cases33treated the issuance of notification of the CentralGovernment under Section 11(2) of the Act vis-a-vis thedegree offered from any Medial Institution as a final stepin the elaborate procedure undertaken by the statutorybody and the Central Government, in the matter ofaccording approval for any medial institution.31.Mr.P.C.Sasidharan on the other hand submits thatneither the Act nor the regulations framed thereundercontemplates a dispensation with the requirement of anyearly approval of the Medial Council, for any institution,even after verifying the adequacy of the facilities that areprovided in the institution and recognition of the degreeoffered therein. Admittedly, he submits that the MedialCouncil has not renewed the approval of these institutionsfor the year 2009-10 and consequently an inference is tobe drawn that the institutions in question are notsupported by a current approval from a CentralRegulatory Body.32.I have already referred to section 10A(1) and Section11 of the Act. I have also been taken through the W.P.(C).19599/2009 & Connected Cases34minimum standards, requirements of the Medical CollegeRegulations, 1999, framed by the Medial Council. On areading of the provisions of the Act and the regulations, Iam of the view that the statutory Scheme contemplates anannual or even more frequent verification and assessmentof the facilities that are provided in any Medicalinstitution by the MCI which exercises statutory powers.A notification issued under Section 11(2) of the Act is anact of considerable import, in the statutory Scheme. Adegree offered by any Medical institution is eligible to betreated as a recognized qualification only if it is sospecified in the 1st schedule to the Medical Council Act.Absence of a notification will lead to an inference that aqualification acquired by a person from the institution inquestion is not a recognized medical qualification.Exts.P6 and P7 will show that the qualification acquiredby the two Medical institutions in question are nowtreated as recognized Medical institution within themeaning of Medical Council Act. The exercise of anyearly approval of the Medical institution is intended tosee that the institution is equipped with a necessaryinfrastructure and prescribed facilities, to enable the W.P.(C).19599/2009 & Connected Cases35students to prosecute their studies therein to acquire adegree which is otherwise eligible to be treated as arecognized Medical qualification. Once such an approvalin terms of Section 11(2) is granted and so notified then itwould lead to a statutory inference that the institutions,which are so included in the First schedule to the MedialCouncil Act, do have approval of the Central Regulatorybody, the Medial Council of India and the CentralGovernment.33.A further perusal of the Medical Council Act notonly does not offer any contra inference to be derivedfrom a reading of the said provisions but would onlysupport the aforesaid conclusion.Of particular significanceis Section 19 of the Medical Council Act which enablesthe Central Government to withdraw the recognition, ifthe circumstances so warrant. Thus the question ofrenewal of recognition or approval, as the case may be,does not arise in the case of institution, which is notifiedin terms of Section 11(2) of the Medical Council Act. Theapproval that was required in so far as the institution isconcerned, has preceded the issuance of statutory W.P.(C).19599/2009 & Connected Cases36notification under Section 11(2) of the Act.34.I am therefore, of the view that the stand taken bythe University with respect to the two Medicalinstitutions in the instant case that do not have a currentapproval of the Medical Council of India for the year 2009-10 is erroneous and misconceived. The said stand hasbeen taken on a wrong appreciation of the statutoryscheme.35.The next ground that has been taken by theUniversity to deny an extension of affiliation which iscommon to all the four institution is that the institutionshad effected selection and admission of students withregard to the rules and regulations issued in that behalfby the University. Same contentions had been raisedwith regard to these institutions, during the previousyear, ie, 2008-09 and it was pointedly considered by theDivision Bench in W.A.241/2009. It is apposite to refer toparagraph 18 of the said judgment and it is profitable toextract the same. W.P.(C).19599/2009 & Connected Cases37“We find considerable force in the submissionof the learned senior counsel for the 1strespondent. Section 3(1) of Act 17/2004 readsas follows.“3.Procedure for admission into selffinancing professional colleges (1)Notwithstanding anything contained in anylaw for the time being in force or in anyjudgment, decree or order of any Court orany other authority or in any agreement,the admission of students into a selffinancing professional college shall bemade on the basis of merit as provided insub-sections (2) to (6).”Section 3 of the Act 19/2006 is as follows:“3.Method of admission in ProfessionalColleges or institution:- Notwithstandinganything contained in any other law for thetime being in force or any judgment,decree or order of any Court or any otherauthority, admission of students in allprofessional colleges or institution to allseats except Non-Resident Indian seatsshall be made through Common EntranceTest conducted by the State followed bycentralized counseling through a single W.P.(C).19599/2009 & Connected Cases38window system in the order of merit by theState Commissioner for EntranceExaminations in accordance with suchprocedure as may be specified by theGovernment from time to time.When the Regulations of the University weresubstituted by the Act 17/2004, which in turnwas repeated by Act 19/2006 the strikingdown of the relevant provisions of Act 19/2006will not resurrect the Regulations of theUniversity. Further except making a generalstatement that the selection and admissionshall be made only on the basis of the Rulesand Regulations of the University, Governmentetc., nothing was specifically stated in Ext.P4.The University has also never alerted the 1strespondent's college, pointing out the methodof selection it should follow, as a condition forcontinuance of the affiliation. Further, wenotice that the method followed by the 1strespondent's college for admission has, no theapproval of this Court also. The SupervisoryCommittee headed by Justice P.A.Mohammedtook actions against the Self financingColleges, which followed similar methods foradmission of students. While dealing withthose matters, this Court, in effect, approved W.P.(C).19599/2009 & Connected Cases39the method of admission based on the markssecured in the entrance examination as wellas the marks secured in the relevant subjectsof the qualifying examination. Though thelearned counsel for the University would pointout that the University was not a party to thosedecisions, we notice that the statutoryauthority under Act 19/2006, which is tosupervise the admissions, was a party to thoseproceedings. In the result, we notice that themain objection taken against the method ofadmission followed by the 1st respondent'scollege cannot be sustained in the absence ofany valid rules governing the field.36.The findings and observations of the Division Benchthough rendered in the case of Medical institutions wouldapply in the case of an Engineering Colleges also. Theaforementioned finding, in my view, is sufficient to holdthat the second ground of rejection put forward by theuniversity in its decision taken on 18.6.2009 is alsounsustainable. But Mr.Sasidharan has made a referenceto three other sets of regulations, which do not seem tohave been specifically raised before the Division Bench inW.A.241/09. I therefore, think it is necessary to refer to W.P.(C).19599/2009 & Connected Cases40the said regulations also and the submissions made byMr.Sasidharan on the basis of the same for the sake ofcompletion.37.Mr.Sasidharan has made a reference to Ext.R1(c)“regulations”, produced along with the counter affidavitfiled in W.P.(C).19591/2009. Ext.R1(c) is an order issuedby the Joint Academic Branch of the University of Calicutand issued on 4.3.2009. After referring to the meeting oftwo committees convened for the framing of regulationsstreamlined to the admissions to the Medical/ Engineeringand related courses, the order goes on to state thefollowing:-The Committee recommended thatcriteria for selection and method of admissionto merit/management seats forMedical/Engineering and related coursesconducted by Government/Aided/Self-financingcolleges affiliated to University of Calicut shallbe governed by the rules/regulations framed bythe Commissioner of Entrance Examinations orother competent authority appointed by theGovernment of Kerala in consultation with the W.P.(C).19599/2009 & Connected Cases41University and without contravening with thestipulation of the apex bodies concerned (vizMedical Council of India, Dental Council ofIndia, Indian Nursing Council, Central Councilof Homeopathy, Central council of IndiaMedicine, All India Council for TechnicalEducation, Council of architecture etc.) In allmatters related to selection and admission, thedecisions of the University shall be final.It was further decided that the studentsadmitted by affiliated colleges violating theabove regulations are not eligible forregistration to University examinations andcontravention of the above regulation shalllead to withdrawal/suspension of affiliation.”38.Mr.Sasidharan contends that the University hastherefore, decided that the criteria for selection andmethod of admission to merit/management seats in theMedical/Engineering courses conducted by theGovernment/Aided/Self financial colleges affiliated to theUniversity of Calicut shall be governed by therules/regulations framed by the Commissioner of EntranceExaminations or other competent authority appointed bythe Government of Kerala in consultation with the W.P.(C).19599/2009 & Connected Cases42University and without contravening the stipulation of theapex bodies. It is contended that Ext.R1(c) wouldtherefore, indicate that the admission to all self financingcolleges affiliated the University of Calicut shall begoverned by the rules and regulations framed by theCommissioner of Entrance Examinations in consultationwith the University. It is contended that admittedly themanagements had followed their own procedure. Theyhave not effected admissions, in the year 2008-09 or theyears earlier, on the basis of a set of regulations framedby the Commissioner in consultation with the Universityand consequently a violation in this regard can belegitimately taken note of by the University in denying anextension of affiliation.39.I am not impressed with the submission for morethan one reason. Firstly, the relevant portion of Ext.R1(c)which has been extracted above, contemplatesrules/regulations framed by the Commissioner inconsultation with the University to govern the admissionsto the colleges affiliated to the Calicut University. Ext.R1(c), at best, would reflect a decision that is taken by the W.P.(C).19599/2009 & Connected Cases43University to be governed by a set of rules to be framed bythe Commissioner in consultation with the University,regulating the admission to the affiliated colleges of theUniversity. Ext.R1(c) does not refer to any particular setof regulations which have been framed by theCommissioner in the manner contemplated therein. Noris it a case of the University that Ext.R1(c) has followed aset of regulations as contemplated therein. Ext.R1(c), atbest, would therefore, be a declaration of the decision thatis taken by the University. It does not contain a set ofrules, otherwise in existence and it does not contain a setof rules, intended to govern the admissions to Selffinancing colleges affiliated to the University. Thepetitioners cannot be blamed, for contravening the set ofregulations which are yet to come into existence.40.I also think it is necessary in this context to refer tothe submission made by the learned counsel for thepetitioner on the basis of certain regulations framed bythe University in the year 2004 and stated to be applicableto Self financing Engineering colleges. The same calledas Engineering Degree Courses Regulations published by W.P.(C).19599/2009 & Connected Cases44the University of Calicut, and stated to be applicable witheffect from 2004 admissions are produced as Ext.P5along with W.P.(C).19599/2009. The conditions foradmission to B.Tech Engineering degree courses isprovided in the said regulations which reads as follows:-Conditions for admission.Candidates for admission to the B.Tech(Engineering) Degree Course shall be requiredto have passed the Higher Secondaryexaminations of state Board of Kerala orexaminations recognized equivalent there toby the any Universities of Kerala, with 50%marks in Mathematics and 50% marks inPhysics, Chemistry and Mathematics puttogether. Candidates, belonging to Sociallyand Educationally Backward Classes with atotal family annual income not exceeding thelimit notified by the Government from time totime, need only 45% marks in Mathematicsand 45% marks in Physics, Chemistry andMathematics put together. Candidatesbelonging to scheduled caste and schedulestribe need only a pass in the qualifyingexamination.They have to quality the Sate Level W.P.(C).19599/2009 & Connected Cases45Entrance Examination conducted by theCommissioner for Entrance Examination orstate level/National Level EntranceExamination approved by the Government asequivalent. They shall also satisfy theconditions regarding age and physical fitnessas may be prescribed b the University ofCalicut.41.Learned counsel for the petitioner submits that ifthe aforementioned are treated as conditions foradmission prescribed by the University then, theinstitutions in question have ensured that the studentswho are admitted to their institutions satisfied theconditions of eligibility. Admissions are effected to thepetitioners institutions on the basis of merit, assessed byaggregating the marks obtained by the candidate in thecompetitive examination conducted by the Commissionerof Entrance examinations and the marks in the qualifyingexaminations. Ranking is on the basis of inter se merit. Itis ensured that the candidate has acquired the minimumeligible marks both in the entrance test conducted by theCommissioner as also in the qualifying examinations. Ifind force in the submission. W.P.(C).19599/2009 & Connected Cases4642.The procedure followed by the Medical institutionsin the matter of effecting admissions, by determining interse merit on the basis of marks obtained by the candidatein the qualifying examination and in the entranceexamination conducted by the commissioner, has beenreferred to by the Division Bench in W.A.241/09 and thecontentions raised by the University that the method ofadmission followed by the institution in that regard isillegal, has been rejected as well.43.There are two other sets of rules which have beenrelied on by Mr.Sasidharan. I will refer to them in thecourse of considering the contention that the collegeshave contravened the statutory provisions in effectingappointment of teachers in the institution.44.The next ground that has been put forward by theUniversity in this regard is that the Management haveviolated the provisions contained in Statute 9(f) ofChapter 23 of the Calicut University First statutes, 1977,and that they have violated the undertaking given by them W.P.(C).19599/2009 & Connected Cases47to the University at the time of granting affiliation thatthey will faithfully follow the provisions of the UniversityAct. Statutes, ordinances, regulations and directionsissued by the University from time to time and alsoadmitted only such students who are eligible as per theregulations of the University. Statute 9(f) of Chapter 23of the University First Statutes reads as follows:-9(f) - The Educational Agency/Managementshall give an undertaking to the University tocarry out faithfully, the provisions of theUniversity Act, Statutes, Ordinances, andRegulations and the directions issued by theUniversity from time to time, in so far as theyare related to the college. The undertakingshall be endorsed by the Principal of thecollege.45.It is contended that the Managements have violatedstatute 9(f) Chapter 23 of the University First statute,University essentially contends that the Managementshave violated the undertaking given by them at the time ofgrant of provisional affiliation. I have already described indetail, in the preceding paragraph the contention of the W.P.(C).19599/2009 & Connected Cases48University that the petitioner/institutions have admittedineligible students. I have referred to the set ofregulations relied on by the University in this regard,produced as Ext.R1(c). I have also referred to 2004regulations, referred to by the petitioners, and governingthe admissions to B.Tech degree courses. Apart from thefact that I have already found that the case put forwardby the University in this regard is unsustainable, I havealso referred to the findings and observations made by theDivision Bench, with regard to the similar contention thatwas raised by the University, in the matter of procedurefor admission that have been adopted by the Medicalinstitutions, in W.A.241/09. It is also significant to notethat the Division Bench has also referred to earlierjudgments of this Court, wherein the procedure foradmission 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 thatthe said procedure is merit based and non exploitative. Ialso think it is significant that the University has notspecified which clause in the undertaking that has beencontravened and how the procedure of admissions W.P.(C).19599/2009 & Connected Cases49adopted by the Universities has resulted in thecontravention of any binding statutory rules andregulations.46. The next common ground for rejection put forwardby the University is that the teachers are selected andappointed by the petitioners in terms of the UniversityAct, Statutes and Regulations, which is a conditionmandated while granting recognition. Mr.Sasidharanrefers to Section 2(7) of the University Act and points outthat self-financing college is also a private collegeaffiliated to the Calicut University. He refers to Clause 6of the Calicut University First Statutes, which providesthat in the case of a private engineering college,appointments to the teaching posts, including workshopstaff shall be made by the educational agency only from alist of persons prepared by the selection committeeaccording to the rank assigned by the committee. Theconstitution of the selection committee is also providedtherein. Reference is also made to section 68A of theCalicut University Act, which reads as follows: W.P.(C).19599/2009 & Connected Cases5068A. Special provisions in respect of unaidedcolleges – Notwithstanding anythingcontained in this Act or the statutes,Ordinances, Regulations, rules, bye laws ororders -(a).the scales of pay and other conditions ofservice of the teaching and non-teaching staffof unaided colleges and (b).the admission and selection and feespayable by, students in such colleges, shall be determined, from time to time, by theGovernment on the basis of therecommendations of a committee constitutedby the Government consisting of -(i).one of the Vice Chancellors of theUniversities in the State, nominated by theGovernment;(ii).the secretary to Government, HigherEducation Department (who shall be theconvenor of the committee); and (iii).the Director of Collegiate Education.47.It is contended that, therefore, it is open to theGovernment to determine the scales of pay and the otherconditions of teachers and non-teaching staff of unaided W.P.(C).19599/2009 & Connected Cases51colleges. The petitioner institutions are bound by anylawful directives that may be issued by the Government inthat regard under Section 68(A) of the Act. They haveappointed their own teaching staff without any referenceto the University or the provisions of the CalicutUniversity Act or the Calicut University First Statutes.The University is, therefore, entitled to take note of suchstatutory provisions and deny extension of affiliation, it iscontended.48.I have, in an earlier portion of the judgment,mentioned that I will refer to another set of Rules, reliedon by the learned counsel for the University tosubstantiate his contention that the petitioner institutionshave contravened the statutory provisions, both in thematter of effecting admissions in the institutions and infixing 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 aspectsregarding applicability of the first statutes and the firstordinances, are common. W.P.(C).19599/2009 & Connected Cases5249. In the matter of admissions, learned counsel for theUniversity had referred to the Calicut University FirstOrdinances, 1978 in general and the particular provisionstherein fixing the fee leviable in affiliated colleges ascontained in Chapter 17 of the Calicut University FirstOrdinances. It is contended that indisputably, thepetitioners institutions have been collecting fees from thestudents far in excess of the fees fixed in the tablecontained in chapter 17 of the First Ordinances and thatthe First Ordinances interdict a private college affiliatedto the University from collecting fees in excess of what isfixed therein. Since they have collected fees according totheir own determination they have violated the provisionsof the First Ordinances, it is contended. I have alreadyextracted Section 68A of the University Act and it issignificant to note that the Section contains a non-obstante clause. It was brought in by the University LawsAmendment Act 9/95. Section 68A became part of the Acton the introduction of Chapter 8A in the Calicut UniversityAct. It is a special provision in respect unaided colleges.The definition of a 'private college' under Section 2(16) ofthe Calicut University Act would include a college W.P.(C).19599/2009 & Connected Cases53maintained by an educational agency and it might includea self-financing college, which is affiliated to theUniversity. But, it is relevant to take note of the fact thatthe legislature itself, in its wisdom, was of the opinion thatthe existing provisions in the statutes, ordinances,regulations, rules, bye-laws or orders framed under theCalicut University Act, undoubtedly providing for thescales of pay and other conditions of service of the staffand also providing for admissions, selection and feespayable by students in affiliated colleges cannot beconsidered as comprehensive of unaided colleges as such.This would be patently obvious when one goes by thescales of pay fixed in Chapter 17 of the University FirstOrdinances. It does not require an elaborate process ofratiocination to note that the scale of fees prescribedtherein would be totally inapplicable to a Self-financingProfessional Colleges. It is relevant to note that even inthe case of merit seats in Government colleges, the scaleof fees now fixed for professional courses would be vastlyhigher than the fee fixed in Chapter 17 of the FirstOrdinances. W.P.(C).19599/2009 & Connected Cases5450. It is thus, that the legislature thought it necessary toincorporate Section 68 (A) in the Calicut University Act asa plenary provision forming the source of power to issueregulations in the matter of scale of pay and otherconditions of the teaching staff and admission andselection of staff in unaided colleges. But the power toframe such rules is conferred on the Government and noton the University.51. It is not the case of the University that subordinaterules have been framed in terms of Section 68(A)of theAct. Obviously, neither the First Statutes nor the FirstOrdinances can be sourced to Section 68A of the Act.Both of them were enacted well prior to the introductionof Section 68A in the Act. Nor has my attention beeninvited to any amendment to the First Ordinances andFirst Statutes, specifically relatable to the Self-financingColleges, brought in subsequent to the introduction ofSection 68A of the Act.52. I am, therefore, of the view that the provisions in theUniversity First Statutes, as regards the procedure for W.P.(C).19599/2009 & Connected Cases55appointment of teachers in colleges and the provisions inthe First Ordinances fixing the fees payable by thestudents in such colleges will have to be treated asinapplicable to unaided colleges especially Self-financingColleges. In that view of the matter, the stand taken bythe University that the petitioners have contravened theprovisions of the Calicut University First Statutes and theCalicut University First Ordinances in the matter ofappointment of teaching staff in the colleges and in thematter of effecting admissions and in determining the feespayable by the students is unsustainable.53. In this context, I also think it is appropriate to refer tothe submission by the learned counsel for the petitionersthat in the matter of admission and determination of fees,there are at present no binding statutory regulationswhich, as such, regulate the said process in Self-financingColleges. The contention is inter alia rested on the factthat the legislature had brought into force the Kerala Self-Financing Professional Colleges (Prohibition of CapitationFees and Procedure for Admission and Fixation of Fees)Act, 2004. W.P.(C).19599/2009 & Connected Cases5654. Section 3 of the 2004 Act prescribes the procedurefor admission into self-financing professional colleges andSection 4 of the same provides for the determination ofthe fees. A format completely different from theprocedure for admission in aided colleges was providedfor in the 2004 Act. Both Sections 3 and 4 of the said Actcontains a non-obstante clause, overriding as it were, anyother rules having the force of law, prevailing at that pointof time. It is contended that the legislature had,therefore, evinced its intention to supersede any rule orregulation providing for the procedure for admission anddetermination of fees in so far as they may apply to Self-financing Colleges, by the provisions enacted in theplenary legislation.55. 2004 Act was repealed by the Kerala ProfessionalColleges or Institutions (Prohibition of Capitation Fee,Regulation of Admission, Fixation of Non-exploitative Feeand Other Measures to Ensure Equity and Excellence inProfessional Education) Act, 2006 vide Section 20 thereof.No doubt, certain crucial provisions in the 2006 Act were W.P.(C).19599/2009 & Connected Cases57struck down by a Division Bench of this court in LisieMedical and Educational Institution v. State ofKerala (2007 (1) KLT 409). But the said Act, as such,survives. The regulations which were prevailing prior tothe 2004 Act, if purported to govern Self-financingColleges in the matter of appointment and determinationof fees was either superseded or rendered inapplicablequa Self-financing Colleges by enactment of 2004 Act andthe said position in law continued by the enactment of2006 Act. These regulations cannot be considered aseither re-surfaced or resurrected either by reason of therepeal of 2004 Act or by reason of certain provisions ofthe 2006 Act having been declared as unconstitutional.Both the procedure for admission and determination offees made under the University First Statutes and theFirst Ordinances are inconsistent with the statutoryformat brought about by the 2004 Act and the 2006 Actand therefore, they cannot be applied to the Self-financingColleges. New Rules or Regulations, applicable to Self-financing Colleges can be framed only in terms of Section68A of the University Act and that has not been done W.P.(C).19599/2009 & Connected Cases58hitherto.56. This aspect, though not elaborately, had beenconsidered by the Division Bench in W.A.No.241/09.57. I find force in the said submission. The plenarylegislature while enacting 2004 Act was obviouslyintending to provide for a different format in the matter ofappointment and fixation of fee in Self-financing Colleges.May be, the procedure as provided in the said statute wasnot brought into vogue. But the effect of the provisionscontained in the said enactment, by operation of law willhave to be accepted. Anything inconsistent with theformat provided under the 2004 Act in the matter ofadmission and fixation of fee, in Self-financing Collegesshould be held to be impliedly repealed by the Self-financing Colleges or superseded by the application ofDoctrine of supersession, which is only another facet ofthe Doctrine of implied repeal. The situation continuedwith the repeal of the 2004 Act, contemporaneous to theenactment of 2006 Act. I am, therefore, of the view thatany subordinate rules or regulations framed under the W.P.(C).19599/2009 & Connected Cases59Calicut University Act prevailing prior to the enactment of2004 Act, should be treated as rendered inapplicable tothe case of Self-financing Colleges, by the enactment ofthe 2004 Act and thereafter by the 2006 Act and any suchregulations providing for a different format in the matterof selection and admissions in Self-financing Colleges,inconsistent with the plenary law mentioned above, shouldbe treated as impliedly repealed insofar as Self-financingColleges are concerned.58. Once this position is accepted, it will also have to bementioned that the right to establish and run aninstitution as Self-financing Colleges has been recognisedand protected under Article 19(1)(g) of the Constitution bythe Constitution Bench of the Supreme Court in TMA PaiFoundation v. State of Karnataka {2002(8) SCC481}. The right of such institutions to establish their ownformat in the matter of admissions to the colleges andfixation of fee subject to such method being non-arbitrary,non-profiteering, fair and reasonable has also been upheld(para 40, 41 and 43 of the judgment in TMA Pai W.P.(C).19599/2009 & Connected Cases60Foundation).59. What remains are the grounds of rejection which areapplicable only in the case of Medical Colleges. I will nowproceed to consider the same.60. It is stated that the Amala Institute of MedicalSciences, Thrissur and the Jubilee Mission MedicalCollege, Thrissur, have not prescribed tie up withPrimary/Community Health Centres for training ofstudents and there are no facilities for training studentsfor Post Mortem examination as per the InspectionCommission Report.61. Learned counsel for the University Mr.Sasidharansubmits that the students of these colleges are taken fortraining for Post Mortem to the Bangalore MedicalCollege. They do not have their own tie up withPrimary/Community Health Centres.62. Learned counsel for the petitioner submits that the W.P.(C).19599/2009 & Connected Cases61institutions have a Primary/Community Health Centres fortraining all students. Training in Post MortemExamination is given to the students in a different centre.In doing so, the institutions have not contravened any ofthe conditions for approval given by the Medical Councilof India and therefore, the same cannot constitute aground for rejection the extension of affiliation.63. One aspect which is relevant in considering thiscontention, is that the same is related to the existence ofadequate facilities in the Medical institutions, both in thematter of tie up with the Primary/Community HealthCentres and also in the matter of training students forPost Mortem examination. It cannot be gainsaid thatthese are aspects which obviously falls for scrutiny by theMedical Council of India. In other words, it is a CentralRegulatory Body, which will have to assess the adequacyof the facility in the Medical institutions and then take adecision as to whether the qualification obtained by astudent prosecuting his study from these institution's canbe recognised for the purpose of Section 11(2) of theMedical Council of India Act. The opinion given by the W.P.(C).19599/2009 & Connected Cases62Medical Council of India, cannot but be of primordialimportance in this matter. If the University feels that anyspecific aspects, regarding the facilities given in theseinstitutions which are approved by the Medical Council ofIndia, has not been correctly assessed by the MedicalCouncil of India, or that there is gross disparity in theassessment made by the Central Regulatory Body and theUniversity or that the approval given by the CentralRegulatory Body is vitiated by any fraud practised by theInstitution, exercise by the institution, then it would beopen to them to bring such aspects to the notice of theMedical Council of India and the seek further action. Adifferent view as regards the existence of facilities in theinstitutions, at variance from the assessment made by theMedical Council of India and accepted by the CentralGovernment for the purpose of Section 11(2) of theMedical Council of India Act cannot afford a justificationfor continuing affiliation to be approved institution. I am,therefore, of the view that the said ground put forth by theUniversity in justification of its stand is alsounsustainable. W.P.(C).19599/2009 & Connected Cases6364. The next ground, which has been put forth by theUniversity as regards the Medical Colleges is that thecandidates ineligible for admission as per the Rules of theUniversity/Government/Medical Council of India wereadmitted and permitted to undergo the course of studyand presented for the University Examinations. As rightlypointed out by the learned counsel for the petitioners, thisaspect has been squarely considered by the DivisionBench in W.A.No.241/09 and found against the University.The same contention cannot again be resurrected by theUniversity.65. What remains is only the contention taken as regardsSahrudaya College of Engineering to the effect that theydid not co-operate with the Inspection Commissionappointed by the University. I am afraid, this contentionis also not available at this stage in the light of Ext.P6judgment in W.P.(C)No.17643/08 wherein a learned Judgeof this court has squarely considered the contention andrejected in the years 2007-08 and 2008-09. W.P.(C).19599/2009 & Connected Cases6466.Since I have undertaken an elaborate discussion ofthe issues, I consider it advantageous to summarize myconclusions as hereunder.(i).The petitioners in Writ PetitionNos.19599/2009 and 19600/2009 namely SahrdayaCollege of Engineering & Technology and JyothiEngineering College have been approved by theAICTE for the year 2009-10 as well.(ii).The stand taken by the University that thesetwo colleges are not entitled to an extension ofaffiliation for the year 2009-10 on the ground thatthey do not have a current approval from the AICTEis untenable and unsustainable.(iii).The petitioners in Writ PetitionNos.19591/2009 and 19604/2009, the AmalaInstitute of Medical Sciences and Jubilee MissionMedical College are recognized Medical Institutionsin that behalf by the Medical Council of India and W.P.(C).19599/2009 & Connected Cases65the Central Government. The degrees obtained bythe students from these two institutions are treatedas recognized medical qualifications by the CentralGovernment in terms of Section 11(2) of the MedicalCouncil Act, 1956.(iv).Consequently, there is neither a necessity nor aprovision in the Medical Council Act for an yearlyapproval of these two Medical Institutions. Thestand taken by the University that these twoMedical institutions are therefore, not entitled to anextension of affiliation for the year 2009-10 becausethey do not have an approval from the CentralGovernment for the year 2009-10, is untenable andunsustainable.(v).The provisions in the Calicut University FirstStatutes providing for the constitution of theselection committee for appointing teaching staff inaffiliated colleges, are inapplicable to the case ofSelf financing colleges affiliated to the University. W.P.(C).19599/2009 & Connected Cases66Consequently the stand taken by the University thatthese Institutions have contravened the provisionsof the University statutes or regulations in thematter of effecting appointment in their colleges isuntenable and unsustainable.(vi).Ext.R1(c) order dated 4.3.2009 contains only adecision by the University that the method ofadmission to Self financing colleges shall begoverned by the rules/regulations framed by theCommissioner in consultation with the University.Ext.R1(c) by itself does not contain the rules and itcan only be treated as a proposal on the part of theUniversity to frame such rules. No rules have beenframed pursuant thereto.(vii).The provisions relating to method ofadmission and determination of fees as contained inthe Calicut University First Ordinances, 1978, areinapplicable to the case of Self financing colleges. W.P.(C).19599/2009 & Connected Cases67(viii).The power to frame any rules, providingfor the determination of procedure for admissionand determination of fees in Self financing collegesis available to the Government in terms of Section68A of the University Act and the Government hasnot framed any rules in exercise of its powers underSection 68A of the Act so far.67.The grounds stated by the University as contained inminutes of the meeting of the Syndicate held on18.6.2009, for denying extension of the affiliation to thepetitioners are untenable and unsustainable.68.For all these reasons mentioned above, I am of theview that the petitioners are entitled to succeed. Thedecision taken by the Syndicate of the Calicut Universityon 18.6.2009, (Ext.P4 in Writ Petition No.19599/2009), isquashed. University is directed to extend the affiliationfor all the petitioners, for the year 2009-10 and orders inthis regard shall be passed within two weeks from thedate of receipt of a copy of this judgment. Petitioners are W.P.(C).19599/2009 & Connected Cases68entitled to proceed further in the academic year 2009-10in consequence of the relief granted herein.Writ petitions are allowed.V.GIRI,Judgemrcs