W.P.C. Nos. 1422 of 2013, 2363 of 2013 and 14114 of 2013 (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 29TH DAY OF JULY 2013/7TH SRAVANA, 1935** ## **WP(C).No. 1422 of 2013 (C)** **--------------------------------------** **PETITIONERS:** **---------------------** **1. DR. RINTHA AURIF, KALLOLIL, TC 55/683, NEERAMANKARA, PAPPANAMCODE P.O, TRIVANDRUM - 695 018.** ## **2. DR. NIDHYA .E,** - **A-33/535, NEW HOUSING UNIT, PONNAVARAYANKOTTAI PATTUKOTTAI, TANJORE - 614 602.** **3. DR. J. PRABHAKARAN, NO.FF1, PLOT NO.3, FIRST STREET, JEEVA NAGAR PALLIKARANAI, CHENNAI, PIN - 600 100.** ## **4. DR. REGINALD .J,** - **NO.2, SRINAVOPRIYA ILLAM, CYLON COLONY, FOUR ROAD, THURAMANGALAM P.O, PERAMBALLUR, TAMILNADU.** **5. DR. DEEPA K.S, HARESH CLINIC, 31/243, VADAKKAANTHARA ROAD, PALAKKAD-12.** **6. DR. ASWIN DAS .M, "KUNBAMBATH', NEAR GOVERNMENT HOSPITAL, PAYYANNUR, KANNUR.** **7. DR. YUVARAJ,** - **25/8, JOTHI ILLAM, VELLAAIMMAL LAY OUT, UTHUKADU ROAD, POLLACHI - 642 001.** **BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE, ADVS. SRI.TONY GEORGE KANNANTHANAM, SRI.THOMAS GEORGE, SRI.JIJI THOMAS.** **RESPONDENTS:** **------------------------** **1. THE KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O, THRISSUR - 680 596, REPRESENTED BY ITS REGISTRAR .** **Prv.** ## **W.P.(C).NO.1422/2013-C:** ## **2. THE KARUNA MEDICAL COLLEGE,** - **REPRESENTED BY ITS PRINCIPAL, VILAYODI, PALAKKAD-678 013.** ## **3. SAFE DEVELOPMENT ALMS TRUST,** - **REPRESENTED BY ITS MANAGING TRUSTEE, KARUNA MEDICAL COLLEGE CAMPUS, VILAYODI, PALAKKAD DISTRICT-678 103.** **4. THE DIRECTOR OF MEDICAL EDUCATION, TRIVANDRUM - 695 001.** **R1 BY SRI.P.SREEKUMAR,S.C, R2 & R3 BY ADV. SRI.ANIL K.NARENDRAN, R4 BY SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL, SR. GOVERNMENT PLEADER SRI. RAMPRASAD UNNI.T.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-07-2013, ALONG WITH W.P.(C).NOS. 2363/2013 & 14114/2013 THE COURT ON 29-07-2013 DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.1422/2013-C:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1 - TRUE COPY OF THE JUDGMENT DATED 27-7-2010 IN W.P.(C). NO.22448/10 OF THIS HON'BLE COURT.** - **EXT.P2 - TRUE COPY OF THE LETTER OF CONSENT DATED 28-7-2010 ISSUED BY THE UNIVERSITY.** - **EXT.P3 - TRUE COPY OF THE LETTER OF PERMISSION DATED 31-3-2011 ISSUED BY THE MEDICAL COUNCIL OF INDIA.** - **EXT.P4 - TRUE COPY OF THE LETTER OF PERMISSION DATED 31-3-2011 ISSUED BY THE MEDICAL COUNCIL OF INDIA.** - **EXT.P5 - TRUE COPY OF THE LETTER OF PERMISSION DATED 31-3-2011 ISSUED BY THE MEDICAL COUNCIL OF INDIA.** - **EXT.P6 - TRUE COPY OF THE LETTER OF PERMISSION DATED 1-4-2011 OF -DO-** - **EXT.P7 - TRUE COPY OF THE LETTER OF PERMISSION DATED 19-4-2011 OF -DO-** - **EXT.P8 - TRUE COPY OF THE LETTER OF PERMISSION DATED 31-5-2011 OF -DO-** - **EXT.P9 - TRUE COPY OF THE LETTER DATED 31-5-2011 ISSUED TO THE GOVERNMENT** - **EXT.P10 - TRUE COPY OF THE NOTIFICATION DATED 21-6-2011 ISSUED BY THE 4TH RESPONDENT** - **EXT.P11 - TRUE COPY OF THE NOTIFICATION DATED 29-6-2011 ISSUED BY THE 4TH RESPONDENT** - **EXT.P12 - TRUE COPY OF THE LIST OF CANDIDATE SELECTED FOR THE P.G. MEDICAL COURSES 2011** - **EXT.P13 - TRUE COPY OF THE COMMUNICATION DATED 30-6-2011 ISSUED BY THE 4TH RESPONDENT** - **EXT.P14 - TRUE COPY OF THE LETTER DATED 1-8-2011 TO THE PRINCIPAL OF THE COLLEGE FROM THE 1ST RESPONDENT** - **EXT.P15 - TRUE COPY OF THE INSTRUCTION OF THE PRINCIPAL/HEAD OF THE INSTITUTIONS -DO- DT. NIL.** - **EXT.P16 - TRUE COPY OF THE LETTER DATED 2-9-2011 TO THE 2ND RESPONDENT.** - **EXT.P17 - TRUE COPY OF THE REMINDER TO THE UNIVERSITY FOR AFFILIATION FOR 2011-12 ON 7-9-2011.** **Prv.** ## **W.P.(C).NO.1422/2013-C:** **EXT.P18TRUE COPY OF THE LETTER DATED 22-9-2011 BY THE COLLEGE TO THE 1ST RESPONDENT** **EXT.P19 - TRUE COPY OF THE LETTER DATED 24-9-2011 FROM THE UNIVERSITY. EXT.20 - TRUE COPY OF THE LETTER DATED 7-10-2011 TO THE 1ST RESPONDENT.** **EXT.P21 - TRUE COPY OF THE LETTER DATED 28-10-2011 ISSUED BY THE UNIVERSITY.** **EXT.P22 - TRUE COPY OF THE REPLY DATED 31-10-2011 TO THE 1ST RESPONDENT.** **EXT.P23 - TRUE COPY OF THE LETTER DATED 9-11-2011 FROM THE 2ND RESPONDENT. EXT.P24 - TRUE COPY OF THE LETTER DATED 11-11-2011 ISSUED FROM THE 1ST RESPONDENT. EXT.P25 - TRUE COPY OF THE REPRESENTATION DATED 16-11-2011 TO THE 1ST RESPONDENT. EXT.P26 - TRUE COPY OF THE LETTER DATED 1-12-2011 TO THE PRINCIPALS OF ALL P.G. MEDICAL COLLEGES.** ## **RESPONDENTS' EXHIBITS:** **EXT.R2.A: COPY OF THE GOVERNMENT LETTER DTD. 16/04/2011 ADDRESSED TO THE PRINCIPALS OF THE MEDICAL COLLEGES, INCLUDING THE 2ND RESPONDENT. EXT.R2.B: COPY OF THE GOVERNMENT LETTER DTD. 28/05/2011 ADDRESSED TO THE M.C.I AND D.C.I, WITH COPY TO THE PRINCIPALS OF THE MEDICAL/DENTAL COLLEGES, INCLUDING THE R.2.** **EXT.R2.D: COPY OF THE LETTER DTD. 30/05/2011 OF THE R.2. ADDRESSED TO THE HON'BLE MINISTER FOR HEALTH, GOVERNMENT OF KERALA, WITH COPY TO THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA.** **EXT.R2.E: COPY OF THE G.O.(RT).NO.2179/2011/H&FWD DTD. 07/06/2011, ALONG WITH THE DISTRIBUTION CHART OF MEDICAL P.G. SEATS IN THE SELF-FINANCING MEDICAL COLLEGES FOR THE YEAR 2011 ANNEXED THERETO.** **EXT.R4.A: COPY OF THE LETTER NO.B4/23517/2010/DME DTD. 10/06/2013.** **EXT.R4.B: COPY OF THE ORDER NO.B4-10165/20/MCTCR DTD. 16/07/2013.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.Nos.1422, 2363 & 14114 of 2013 -------------------------------------------------------Dated this the 29[th] day of July 2013 ## **J U D G M E N T** W.P.C.No.14114 of 2013 is filed by a self-financing medical college established during the academic year 20062007 conducting M.B.B.S course in terms of Ext.P1 letter of permission issued by the Central Government. The petitioner inter alia challenges the action of the 2[nd] respondent University in denying affiliation for the Post Graduate, Medical courses (for short 'PG Course') for which they got permission from Central Government under section 10A of the Medical Council Act, 1956 (hereinafter referred as the MCI Act). 2. The petitioner, for the purpose of starting PG course in the college in various subjects, submitted an application dated 29/10/2009 before the University of Calicut for affiliation, which was later on transferred to the 2[nd] respondent University in terms of Kerala University of Health W.P.C..Nos.1422 of 2013 & conn.cases 2 and Allied Sciences & Ordinance, 2009. In order to submit an application to the Central Government for starting PG courses, production of consent of affiliation is a prerequisite. When there was delay on the part of the 2[nd] respondent to issue consent of affiliation the petitioner approached this Court by filing W.P.C.No.22448 of 2010 and by judgment dated 27/07/2010 this Court directed the 2[nd] respondent to issue consent of affiliation. Thereafter the petitioner was issued with consent of affiliation and on that basis petitioner submitted the application to the Central Government. Pursuant to the same, on the recommendation of the Medical Council of India (for short 'MCI') the Board of Governors issued letter of permission to the petitioner's college permitting them to start various PG courses from the academic year 2011-2012, as provided under Section 10A of the MCI Act. Ext.P3 series evidences the letter of permission. 3 W.P.C..Nos.1422 of 2013 & conn.cases 3. Petitioner also submitted Ext.P4 application to the Government intimating about the sanctioning of PG courses and had requested for “NOC and concurrence” for starting the said courses. Ext.P5 is a communication from the Government of Kerala to the Principal of the College stating that 50% of the total seats shall be filled up by the competent authority and the remaining 50% by the management of the institution on the basis of merit. The Principal was therefore called upon to surrender 50% of the post graduate seats to Government merit quota as per the MCI norms. EXT.P8 is a copy of communication from the Principal of the petitioner college to the Government inter alia stating that the management has decided to admit Government quota students in the 50% quota sanctioned by MCI for the said post graduate seats. The details of the fee proposed to be collected from the management quota were also specified. 4 W.P.C..Nos.1422 of 2013 & conn.cases 4. By Ext.P10 dated 30/06/2011, the Director of Medical Education had informed the Principal of all colleges including the petitioner college that the final round of allotment of the post graduate medical course has been completed on 30/06/2011 in accordance with the time schedule prescribed by the Supreme Court and allotment is made to the 50% Government seats in self-financing colleges. 5. Pursuant to the same the petitioner had admitted students in the Government merit quota as well as the management quota prior to 30/7/2011, the last date of completing admissions. Thereafter by a communication dated 01/08/2011 (Ext.P11) the 2[nd] respondent had given instructions to the petitioner college for the registration of post graduate students admitted in the college. 6. In the meantime, while forwarding the prescribed fee for the courses to the 2[nd] respondent the petitioner requested the 2[nd] respondent by Ext.P13 dated 07/09/2011, W.P.C..Nos.1422 of 2013 & conn.cases 5 requested the University to issue provisional affiliation. By Ext.P15 dated 24/09/2011 the 2[nd] respondent intimated the Principal of the college that they have to submit letter of permission from the Government of Kerala after executing agreement with the Government of Kerala and to clarify whether any students have been admitted to the College for PG courses for which the provisional affiliation was sought for. The petitioner had sent a letter dated 31/10/2011 indicating that as the 'No Objection Certificate' from the Government of Kerala is under process and that MCI has already inspected the college and orders are awaited and as soon as the same are available it would be sent for getting consent of affiliation for starting post graduate courses. By Ext.P18 letter dated 11/11/2011 the 2[nd] respondent informed the petitioner that since the college had violated the conditions stipulated in the letter of consent, the request for provisional affiliation to PG courses in the college from 20112012 is rejected. They were also asked to explain why W.P.C..Nos.1422 of 2013 & conn.cases 6 admissions were made to PG courses in the college without affiliation to the University and contrary to the directions in the consent of affiliation. Petitioner sent Ext.P19 reply dated 16/11/2011 explaining the circumstances under which the admissions were made. It is inter alia stated that an application was submitted to the Registrar for provisional affiliation of PG courses and when the University had requested for letter of permission/NOC from the Government of Kerala, it is stated that the petitioner is awaiting the same. Hence the students were admitted and the matter was informed to the 2[nd] respondent along with the letter requesting for provisional affiliation. 7. According to the petitioner, subsequently MCI issued letter dated 13/12/2012 calling upon the petitioner to show cause why the letter of permission should not be revoked since the the 2[nd] respondent has not granted affiliation for any post graduate educational institution. Petitioner had sent a reply on 20/12/2012 explaining the fact 7 W.P.C..Nos.1422 of 2013 & conn.cases that consent for affiliation was given to the Central Government at the time of submitting the application. 8. By another communication dated 20/02/2013 MCI has called upon the petitioner college to discharge the post graduate students admitted during the academic year 20112012 and submit the compliance within stipulated time period. The petitioner had sent a reply dated 07/03/2013 to the MCI stating that they are awaiting the decision in W.P.C No.1422/2013 and W.P.C.No.2363 of 2013 filed by the students against the failure of university to grant affiliation in the matter. 9. Under these factual circumstances, the petitioner seeks to quash Ext.P18 and inter alia prays for a declaration that the petitioner is entitled to get affiliation on the strength of permission granted by Central Government for the post graduate courses as per Ext.P3 and further seeks direction to the University to grant affiliation to the petitioner college for the post graduate courses for the year W.P.C..Nos.1422 of 2013 & conn.cases 8 2011-2012. The main contention urged by the petitioner is that once the Central Government had granted permission for PG course, the University is under obligation to grant affiliation. That apart, it is contended that the University was well aware of the fact that the petitioner had admitted students on the basis of letter of permission. The students were admitted after complying with the procedure prescribed by the MCI. One student was admitted from the rank list prepared by the Director of Medical Education who had made the allotment and 50% was admitted from the Management quota. The usual practice followed by the University is to give affiliation after a considerable period of time and that too after the date of admission. In fact, the admissions were to be completed under normal circumstances by 31[st] May and on account of certain litigations the Supreme Court had extended the time till 31[st] July and all the admissions were completed by then. According to the petitioner, there was no legal or factual W.P.C..Nos.1422 of 2013 & conn.cases 9 impediment for the University to grant the affiliation, as all the necessary inspections had been conducted by the Inspectors constituted by the MCI. The applications were filed before the University well within time and they had conducted necessary inspection. They have also collected the requisite fee for affiliation and there was no reason to deny the same. 10. The petitioner also sought for a direction to the respondent University to grant affiliation to the petitioner for the academic year 2013-2014. It is stated that no admissions were done for the PG courses in the year 20122013. 11. Counter affidavit is filed by the 1[st] respondent inter alia contending that when the petitioner requested for permission from the State Government to issue essentiality certificate for starting post graduate course as per letter dated 28/06/2010, the Government has given necessary instructions to the Director of Medical Eduction to conduct W.P.C..Nos.1422 of 2013 & conn.cases 10 an inspection in order to consider whether the petitioner can be issued the Essentiality Certificate for starting post graduate course. Pursuant to the same, the Director of Medical Eduction had directed the Principal, Government Medical College, Thrissur to authorise competent officers from the Medical College, Thrissur to conduct the inspection and to report. The allotment was made by the Government with specific condition that the same will be subject to the decision in the writ petitions filed before this court. It was further stated that the grant of affiliation to a course comes purely within the purview of the affiliating University. 12. Counter affidavit is filed by the 2[nd] respondent University in which it is inter alia contended that the letter of consent was issued only to enable the institution to submit an application before the Central Government. It only means that their application for affiliation will be considered at a later stage. The 2[nd] respondent submits that the affiliation was not granted for the PG courses and therefore W.P.C..Nos.1422 of 2013 & conn.cases 11 the petitioner was not entitled to admit the students or conduct the course without such affiliation. The letter of consent is produced as Ext.R2(a). The 2[nd] respondent also contends that there is delay in challenging Ext.P18 which was issued on 11/11/2011. The writ petition is filed only on 04/06/2013 and therefore the writ petition is only to be rejected on the ground of delay and laches. According to the 2[nd] respondent the admissions made are irregular and cannot be regularised merely for the reason that the students were admitted and they have undergone the course. They have not complied with the conditions stipulated in Ext.R2(a) and therefore they are not entitled to get affiliation. There is no legal validity for the admissions given by the petitioner college since they have to comply with the directions issued. It is further indicated that when the University conducted an inspection at the time when the application for letter of consent was submitted, it was reported that the petitioner college was not having the W.P.C..Nos.1422 of 2013 & conn.cases 12 facility to conduct PG course. It is only by virtue of Ext.P2 judgment that the letter of consent was issued. Therefore the University was entitled to make verification of the facility at the time of granting affiliation. Since the request for provisional affiliation was rejected there was no occasion to verify the facilities. It is further indicated that the respondent was deprived of an opportunity to verify the facilities, since the petitioner made admission and no affiliation could be given with retrospective effect assuming that the facilities existed in the college and especially when reports were received from Inspectors highlighting the lack of facilities. It is also submitted that the petitioner did not submit application for affiliation for the academic year 20122013 and 2013-2014 and therefore the grant of affiliation to those years does not arise. 13. Additional statement is filed by the 2[nd] respondent by producing the office records relating to the grant of affiliation to PG courses. It is stated that the grant of W.P.C..Nos.1422 of 2013 & conn.cases 13 affiliation to a new college includes the submission of an application for consent of affiliation which is followed by an inspection of the institution by the University. If deficiencies are noticed the same will be intimated to the institution enabling them to rectify the same and to request for further inspection. Once the consent of affiliation is granted, the institution has to seek permission from the statutory authority namely the Central Government and after getting permission, the institution has to apply for provisional affiliation from the University. It is stated that provisional affiliation is a primary requisite for making admissions to the course. Separate fees are to be paid along with the application for the consent of affiliation and provisional affiliation. If the documents are proper the university deputes another inspection team for inspection and based on their reports a decision would be taken in the matter. According to the 2[nd] respondent the conduct of the petitioner was highly unbecoming of a law abiding authority as they W.P.C..Nos.1422 of 2013 & conn.cases 14 have not approached this Court with clean hands. According to the 2[nd] respondent the college made admissions even before submitting an application for provisional affiliation. It is also indicated that there is no delay on the part of the respondent in considering the application submitted by the petitioner. Though a first inspection was conducted before the grant of giving consent of affiliation and they have noticed some deficiencies there was no request from the college to conduct a second inspection. In the light of the aforesaid pleadings the respondent seeks for a dismissal of the writ petition. 14. W.P.C.No.1422 of 2013 is filed by six students who have been admitted in the college of the petitioner in W.P.C.No.14114 of 2013. According to them, they were misled by the college and the Director of Medical Education, respondents 2 and 4 holding out that it was competent for the college to make admissions and therefore they have joined the college. According to them, when admissions are 15 W.P.C..Nos.1422 of 2013 & conn.cases made through the Director of Medical Education the University is estopped from contending that the college did not have affiliation for post graduate course at the time of admission made. It is contended that the college is an affiliated college and what was required was an affiliation for PG courses which was rejected by insisting on requirements which were not necessary. The University had requested for a letter of permission from the Government. Such a request has no statutory basis. No such request is made from the Government. It is also contended that the students have undergone the course on the basis of admissions made in a college approved by the Director of Medical Education. Once they have opted for the same and once it is found that MCI had granted permission there is no reason for the University to deny the affiliation. If this procedure continues the plight of the students will be affected. Hence the petitioner requested for a direction to the 1[st] respondent university to grant affiliation to the PG course in the 2[nd] 16 W.P.C..Nos.1422 of 2013 & conn.cases respondent college in the academic year 2011-2012 and further for a direction to the 2[nd] respondent to permit the petitioners to pursue their studies in the said college and to permit them to appear for the University examination on completion of their course. 15. W.P.C.No.2363 of 2013 is also filed by a student who was admitted from the merit quota. According to him, if there is any irregularity in the admission process, the Government is under obligation to grant affiliation for the academic year 2011-2012 as they have already made allotment for admission. The said petitioner also seeks the relief of granting provisional affiliation to the said course by the University and alternatively for a direction to issue orders for allotting the petitioner to admit in any other Government medical college to enable to continue the course as per Ext.P6 memo issued by the 2[nd] respondent. 16. Facts relating to W.P.C.No.1422 of 2013 and W.P.C.No.2363 of 2013 are substantially the same except for W.P.C..Nos.1422 of 2013 & conn.cases 17 the reason that the petitioners in W.P.C.No.1422 of 2013 had been admitted in management quota whereas the petitioners in W.P.C.No.2363 of 2013 has been admitted in general merit quota as per the allotment made by the Government. 17. Having regard to the above factual circumstances, the question to be considered in this writ petition are two fold. One is whether the writ petition can be dismissed on the ground of delay and laches on the part of the petitioner college in not challenging Ext.P18 impugned order within a reasonable time and secondly whether a direction can be issued by this Court to the University to grant affiliation to the College for the academic year 2011-2012. 18. Heard the learned senior counsel Sri.K.R.B.Kaimal and Sri.Kurian George Kannanthanam, learned counsel Sri.George Poonthottam, appearing for the petitioners, learned Government Pleader and Sri.P.Sreekumar, the learned Standing Counsel appearing for the University. W.P.C..Nos.1422 of 2013 & conn.cases 18 19. For the sake of convenience the documents relied upon are as shown in W.P.C.No.14114 of 2013 unless otherwise stated herein. Ext.P18 dated 11/11/2011 is the impugned order which reads as under: ## _“_ _**KERALA UNIVERSITY OF HEALTH SCIENCES**_ _Thrissur - 680 596 www.kuhs.ac.in_ _From_ _The Registrar_ _To_ _The Managing Trustee cum Chairman Safe Development Alms Trustee Karuna Medical College Post Vilayodi Chittur Palakkad 678_ _Sir,_ _Sub: Rejection of provisional affiliation to Medical P.G.Courses for 2011-12 - explanation sought for admitting students without affiliation - reg._ - _Ref. 1. Letter of consent No.322/ac/kuhas/10 dated 28/7/2010_ _2. Your letter No.SDAT/KMC/PG Adm/2011 dated 31/10/2011._ W.P.C..Nos.1422 of 2013 & conn.cases 19 _Please refer to your letter cited (2). Since your college violated the conditions stipulated in the Letter of Consent issued vide reference cited (1) above, the University hereby reject your request for Provisional Affiliation to P.G.Courses at your college for 2011-12. you are directed to explain why admissions were made to P.G.Courses at your college without affiliation of this University in contrary to the directions given by it._ _Thanking you,_ ## _Yours faithfully,_ ## _REGISTRAR.”_ Though it is stated that the request for provisional affiliation is rejected for the PG course for the academic year 20112012, the petitioner was also called upon to explain why admissions were made to PG courses without affiliation of the University and contrary to the directions given by it. Petitioner submitted Ext.P19 explanation dated 16/11/2011 stating the reason for making the admissions. Thereafter it 20 W.P.C..Nos.1422 of 2013 & conn.cases seems that nothing has happened in the matter and subsequently petitioner was faced with a show cause notice from MCI as Ext.P20 dated 13/12/2012 for which they have given an explanation as Ext.P21 dated 20/12/2012. It seems that in the meantime, the students have filed W.P.C.No.1422 of 2013 on 14/01/2013 and W.P.C.No.2363 of 2013 on 23/01/2013. Thereafter the petitioner was faced with another communication dated 20/02/2013 from MCI to discharge the students admitted in the academic year 2011- 2012 on account of the reason that no affiliation was granted by the University. The petitioner had sent a reply dated 07/03/2013 requesting the University to wait till orders are passed by this Court. Thereafter they approached this Court on 04/06/2013. One of the contentions raised in the writ petition is that in Ext.P19 the petitioner had requested the University to withdraw Ext.P18 and to grant provisional affiliation for the academic year 2011-2012 pending issuance of Letter of Permission/No Objection W.P.C..Nos.1422 of 2013 & conn.cases 21 Certificate by the Government. From Ext.P15 it seems that the only reason for not granting the affiliation was nonsubmission of the Letter of Permission from the Government of Kerala. Apparently there was no reply from the University to Ext.P19 letter. It is only when MCI had interfered in the matter, the petitioner had approached this Court. Hence I do not think that having regard to the nature of contentions urged by the petitioners in the above cases, the writ petition can be rejected on the ground of delay and laches. The rights of the students who were admitted on the basis of directions issued by the Government is at stake and therefore the writ petition cannot be summarily dismissed on the ground of delay. 20. Now coming to the second question as to whether a direction can be issued to the University to grant affiliation, the facts involved would show that the process for getting affiliation started when the petitioner submitted an application to the University for the grant of affiliation. The W.P.C..Nos.1422 of 2013 & conn.cases 22 application is available in the file produced by the University. It is submitted to the University of Calicut and the request is for starting PG courses in 9 subjects. Date of application is 29/10/2009. The fee is also paid in favour of the University. By a communication dated 06/12/2009 the University had requested for further fee of Rs.4,37,000/-. The same is remitted to the university and the receipt is available. Further details are also furnished. By a communication dated 20/06/2010, the University had informed the Principal of the College, stating that on the basis of the report of the Commission the consent for affiliation cannot be given for the reasons stated thereunder. Thereafter a writ petition was filed by the petitioner college and on the basis of the direction issued by this Court, a letter of consent was issued which is Ext.R2(a), the 2[nd] and 3[rd] paragraphs of which reads as under: _“The Kerala University of Health and Allied Sciences will consider the grant of provisional_ W.P.C..Nos.1422 of 2013 & conn.cases 23 _affiliation to the additional course subject to the recognition by the respective Central Council, fulfillment of conditions specified by the State Government and Kerala University of Health and Allied Sciences for affiliation of additional courses and final inspection by the Kerala University of Health and Allied Sciences._ _The grant of letter of consent shall not give any right to the institution for provisional affiliation and shall not entitle the institution to make admissions to the additional courses. Admissions, as per prescribed rules shall be made only after provisional affiliation to additional course are granted by the Kerala University o_ f Health and Allied Sciences.” 21. Admittedly, an application dated 07/09/2011 was issued by the petitioner college to the University for provisional affiliation only after the admissions were made. Along with the said application demand draft for Rs.3,00,000/- was also enclosed. W.P.C..Nos.1422 of 2013 & conn.cases 24 22. The main argument raised by the University is that when it was specifically mentioned in Ext.R2(a) that the grant of provisional affiliation to the additional courses were subject to the fulfillment of conditions specified by the State Government and the University, and also final inspection by the University, without even requesting for a provisional affiliation the College could not have made the admissions. 23. Reliance is also placed by the learned counsel for the university on the following judgments i) In **Parshvanath Charitable Trust & Others v. All India Council for Technical Education** [ _2013(3) SCC 385]_ the Supreme Court held that the right to establish an educational institution does not carry with it the right to recognition and the right to affiliation. It is held that the grant of recognition or affiliation is neither a matter of course nor is a formality. ii) In **National council for teacher Education v. Venus Public Education Society** _[2013 (1) SCC 332]_ the 25 W.P.C..Nos.1422 of 2013 & conn.cases Supreme Court while considering the NCTE Act and Regulations framed thereunder held that on a keen scrutiny of NCTE Act and regulations it was found that the University or examining body is required to issue a letter of affiliation after formal recognition is issued under the Regulations. Certain obligations are to be carried out by the institution after the letter of intent is received. The letter of intent was communicated to the institutions as well as the affiliating body with a request that the process of appointment of qualified staff as per the policy of the State Government or U.G.C or University may be initiated and the institution may be provided with all assistance. Under such circumstances, the Supreme Court held that it was obligatory on the part of the institution to comply with the said conditions and obtain approval of the affiliating body. The Learned counsel for the respondent also highlighted the observation of the Supreme Court that unwarranted sympathy is not required when rule of law is being applied. W.P.C..Nos.1422 of 2013 & conn.cases 26 Iii) In **Chairman Bhartia Education Society v. State of Himachal Pradesh and others** _[2011(4) SCC 527]_ the Supreme Court had occasion to differentiate between what is recognition and what is affiliation by considering the scope and effect of NCTE Act. It is also held that if irregular admissions are made prior to the grant of affiliation or admission the admissions are irregular. (iv) In **KVM Trust v Kerala University of Health & Allied Sciences** _[2011(4) KHC 948]_ a Division Bench of this Court held with reference to intake of students despite granting permission by the Nursing Council, that if the infrastructural facilities are not available the Court cannot direct for grant of affiliation. In that case, the Indian Nursing Council and the State Nurses and Midwives Council accorded permission for intake of 50 students. The University did not grant affiliation for intake of 50 students on the ground that the college did not have sufficient facilities. It was argued that once the Indian Nursing Council had granted permission W.P.C..Nos.1422 of 2013 & conn.cases 27 the University was bound to give affiliation. The Division Bench found that permission is granted by Indian Nursing Council upon a prima facie satisfaction of the infrastructural facilities and it is for the State Council to accord its permission and the University to conduct inspection and satisfy the availability of infrastructural facilities for running the course before granting affiliation. In such circumstances it is held that the grant of affiliation is not an empty formality. 24. These judgments are relied upon to highlight the fact that affiliation is not an empty formality and when admissions are made irregularly there is no reason to sympathise with the students who gets admission, knowing fully about the fact that the concerned colleges does not have the requisite recognition or permission from the statutory authorities. It is therefore argued that this is a case where the petitioner did not even choose to submit an application for provisional affiliation before starting W.P.C..Nos.1422 of 2013 & conn.cases 28 admissions and therefore there is no reason for this Court to interfere in the matter. It is also argued that initially even the consent for affiliation was not given to the University and the same was rejected after conducting an inspection. It was only by virtue of a direction issued by this Court that the consent for affiliation was granted on certain conditions. Therefore the petitioner college was duty bound to comply with the said conditions before giving admissions to the students. Only on compliance of such conditions and a final inspection by the University that the University could have granted provisional affiliation. 25. On the other hand, it is argued by the learned counsel appearing for the petitioner college that when a composite application has been submitted to the University for affiliation, no separate application is required for the grant of provisional affiliation. Though the University had indicated during inspection that there were certain deficiencies, when MCI after conducting inspection W.P.C..Nos.1422 of 2013 & conn.cases 29 recommends to grant permission and copy is forwarded to the University, no further inspection was required to be made by the University. If at all, an inspection was necessary the University ought to have conducted the final inspection when they had known about the grant of permission by the MCI. Therefore according to the petitioner the letter issued on 07/09/2011 for affiliation was only a continuation of the application submitted on 29/10/2009. It is only forwarding the requisite fee for the courses. That apart it is argued that even on earlier occasions the affiliation was granted only after admissions are made by the respective colleges and University was not in the habit of granting affiliation before the date of admission. Reference is made to Ext.P15 dated 24/09/2011 stating that even after knowing about the admissions and after calling for the details of the students admitted and after receiving the requisite fee for the course, University has only requested for producing the letter of permission from the Government W.P.C..Nos.1422 of 2013 & conn.cases 30 of Kerala for considering the application for provisional affiliation and also sought for a clarification as to whether any students have been admitted in the college during the academic year 2011-2012. Apparently by a communication dated 22/09/2011 the petitioner had informed the University the particulars of post graduate admission made in the college for the year 2011-2012 and the fee for registration and identity card, university union fee and sports affiliation fee were also enclosed. It was shown that 8 students were admitted of which 7 were admitted in the management quota and 1 was admitted in the government quota. 26. In regard to the requirement of the University for letter of permission from the Government of Kerala, this Court had occasion to consider similar issues in several cases especially in relation to the courses recognised by AICTE. It is found by this Court that when the Central Government is the authority to grant letter of permission for starting college or a course in the absence of any provision W.P.C..Nos.1422 of 2013 & conn.cases 31 in the corresponding Act or the regulations framed thereunder insisting for a NOC from the Government, for that reason the University cannot deny affiliation. At best, the University can only request for the views of the Government in the matter. Therefore it was wrong on the part of the University to have insisted for a NOC from the State Government while considering their application for provisional affiliation. This position of law is clear from the judgment of the Supreme Court in **Mata Gujri Memorial Medical College v. State of Bihar** _[2009 (16) SCC 309]_ . In this case affiliation was denied to the University as there was a provision under the Bihar State Universities Act 1976 which indicated that no medical college shall be affiliated except with the prior approval of the State Government. The Supreme court considered whether prior approval of the State Government was required for grant of affiliation to the medical college by the University. It was held that, there were materials on record to indicate that both the Medical W.P.C..Nos.1422 of 2013 & conn.cases 32 Council as well as the Central Government had held due inspections of the institution and were fully satisfied about the capability of the institution to impart MBBS course for the 60 students. Hence it is held that the University should grant permanent affiliation to the institution. Reference is also made in the said judgment in **Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical** E **ducational & Charitable Trust v. State of T.N** _[(1996) 3 SCC 15]_ and the judgment in **Jaya Gokul Educational Trust v. Commr. & Secy. To Govt. Higher Education Deptt.** [(2005) 5 SCC 231]. 27. When it is concluded that NOC from State Government is not required, the next question is only whether a final inspection was required to be conducted by the University. It is said that an initial inspection had been conducted by the University for giving consent of affiliation and they noticed several irregularities and lack of facilities and hence the consent was rejected. The petitioner W.P.C..Nos.1422 of 2013 & conn.cases 33 approached this Court and a direction was given to issue the consent. Apparently the consent is given on certain conditions which included a final inspection by the University. 28. It is argued by the petitioner that when permission from State Government is not required, the grant of affiliation was only a formality and especially when all necessary inspection had been conducted by MCI and on their recommendation, letter of permission was issued. 29. Affiliation from University is not a mere formality. Even for submitting an application for obtaining permission from Central Government a consent of affiliation is required from the University. The consent of affiliation inter alia indicates that if the course is permitted by MCI the University will grant affiliation. In this case, the University was forced to grant consent of affiliation by virtue of a direction issued by this Court to enable the petitioner to apply to the Central Government under Section 10A of the W.P.C..Nos.1422 of 2013 & conn.cases 34 MCI Act. The learned counsel for the petitioner relied upon certain regulations framed under Section 10A of the MCI Act known as 'The Establishment of New Medical Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Medical Colleges Regulation, 1993 (hereinafter referred to as 'the Regulations')'. The qualifying criteria inter alia indicates that the eligible organisation shall abide by IMC Act 1956 as modified from time to time and the regulations framed thereunder and shall qualify to apply for permission to establish new colleges only if certain conditions are satisfied. Paragraph 7 of the qualifying criteria indicates that the medical college should admit students only after Indian Medical Council has satisfied itself about the infrastructural and other facilities for starting MBBS and after receiving a written permission from the Central Government. On this basis it is argued that once MCI had given letter of permission it was open for the colleges to give admission and therefore there is no necessity to wait W.P.C..Nos.1422 of 2013 & conn.cases 35 for an affiliation from the University before starting admissions. 30. The procedure to be adopted in granting affiliation for new college and new courses is provided under Chapter 23 of the Calicut University First Statute 1977. Statute 3 states that application for affiliation in additional subjects or for upgrading a college shall be in Form 3. Application for starting PG courses and for seeking of additional seats in existing courses shall be made in form 4 or form 5. There is no dispute that such an application is submitted in form No.4 by the petitioner college to the University of Calicut. The procedure to be adopted by the Syndicate on receipt of the application for affiliation is further provided in Statute 6. Statute 7 deals with the manner in which an enquiry is conducted by the Syndicate regarding the arrangements made or likely to be made. Statute 8 deals with the manner in which a local enquiry is conducted if it is necessary. Statute 9 deals with grant of affiliation. It clearly indicates W.P.C..Nos.1422 of 2013 & conn.cases 36 that the Universities may appoint a commission to inspect the proposed site of a new college/or to make a physical verification of the facilities and it is on the basis of report by the commission and on fulfillment of the conditions that are specified. Permission would be granted before the commencement of the academic year. Statute 12 deals with conditional affiliation which reads as under: _“The affiliation granted may be provisional. If provisional affiliation is granted for a fixed period, the length of the period and the conditions to be fulfilled by the college before the expiry of the period shall be specified in the order of the Syndicate granting the affiliation. If the conditions are not fulfilled by the end of the period fixed, the affiliation shall cease automatically. If the conditions are fulfilled the Syndicate shall have the power to confirm the affiliation at the end of the period. The confirmation of the affiliation shall be reported to the Senate.”_ W.P.C..Nos.1422 of 2013 & conn.cases 37 Statute 26 deals with the matters to be complied with for seeking affiliation. It inter alia includes the need of the locality, the type of education, the facilities existing, the suitability and adequacy of buildings, libraries, labs etc., the character, qualification and adequacy of teaching staff, whether the building in the colleges located are suitable and such other matters which are essential for maintenance of the standard of University education. The Syndicate shall be guided by the report of the inspection commission. It is said that the 2[nd] respondent University had framed statute only recently and even going by the Calicut University Statute, the requirements to be followed are the same as that of MCI Act and regulations framed thereunder. 31. It is therefore relevant to note that most of the requirements which are insisted by the University for granting affiliation are matters covered by the MCI Act and the regulations framed thereunder. The college is under obligation under Section 10A to submit a scheme to the W.P.C..Nos.1422 of 2013 & conn.cases 38 Central Government which is considered by the Council and it is after the Central Government considers the scheme with the recommendation of MCI that permission is granted for starting PG courses. When the regulation is framed by the MCI prescribing the requirements for starting a medical college or for a post graduate course in an existing medical college definitely the regulations plays a vital role. The colleges are under obligation to satisfy the MCI regarding the infrastructural facilities as well as the faculty available for the purpose of starting such a college. Section 10A(1),(7) and (8) of MCI Act reads as under: _**10-A. Permission for establishment of new** .—_ _**medical college, new course of study, etc** (1) 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 medical college shall—_ _(i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such_ W.P.C..Nos.1422 of 2013 & conn.cases 39 _course or training to qualify himself for the award of any recognised medical qualification; or xxxxxxx_ _(7) The Council, while making its recommendations under clause (b) of sub-section (3) and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely:—_ _(a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under Section 19-A or, as the case may be, under Section 20 in the case of post-graduate medical education;_ _(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources;_ W.P.C..Nos.1422 of 2013 & conn.cases 40 _(c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;_ _(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme;_ _(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications;_ _(f) the requirement of manpower in the field of practice of medicine; and_ _(g) any other factors as may be prescribed._ W.P.C..Nos.1422 of 2013 & conn.cases 41 _(8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or college concerned.]_ Therefore when sub section (7) of section 10A of the MCI Act clearly stipulates the manner in which MCI considers the scheme and verifies the facilities and requirements as contemplated by clauses (a) to (g), what remains for the University to consider for granting affiliation is the main question. 32. It is true that while granting consent for affiliation as per Ext.R2(a), the University had insisted for a final inspection. But when the entire process of verification by MCI was over even before the date when the admission were to take place, and the University was well aware of the said situation, they did not insist for a further inspection. Even in their letter at Ext.P15, the University did not insist for a further inspection. Apparently inspection by the University W.P.C..Nos.1422 of 2013 & conn.cases 42 was not a relevant factor for denying affiliation or provisional affiliation as the case may be. Then the only requirement was permission or NOC from the State Government. As already held no such permission is required. In other words, the college authorities had nothing else to do in the matter for grant of affiliation by the University other than producing the letter of permission from the Central Government. One another factor is that the Government also proceeded with the allotment of admissions to the petitioner college on the basis of the permission granted by MCI. In the light of the aforesaid finding of fact, the question would be whether the University was justified in not granting the affiliation despite the fact that they have received the application as early as on 29/10/2009. The consent of affiliation at Ext.R2(a) was issued on 28/07/2010. The MCI had given letter of permission to the petitioner on 31/03/2011 in respect of M.D (Bio-Chemistry), M.D (Anatomy) and M.D (Pharmacology) on 01/04/2011 on M.D (Physiology), on 19/04/2011 for M.D W.P.C..Nos.1422 of 2013 & conn.cases 43 (Micro Biology) on 31/05/2011 for M.D (Pathology). It is not in dispute that the University was not aware of the said orders issued by the Board of Governance as a copy has seen marked to the University. What remains was only a NOC from the State of Kerala as insisted in Ext.R2(a). As already held, such a permission was not required and therefore the 2[nd] respondent University was under obligation to have issued an affiliation to the petitioner's college. 33. The complaint now made is that the affiliation is rejected as admissions were made before getting the affiliation. As far as medical education is concerned, once the Central Statute namely the MCI Act and the regulations framed thereunder governs the field, the University statutes can only have relevance for the purpose of affiliation which will enable the colleges to affiliate with the University for the purpose of registering the students and for the conduct of examination. No doubt, if there are any other guidelines which are required to be followed over and above the W.P.C..Nos.1422 of 2013 & conn.cases 44 stipulations insisted by the MCI as per the regulations it is open for the university to point out the same and ask for compliance. As already held, here the University does not say as to what is lacking with this college for denial of affiliation. Going by the records one could only see that they insisted for State Government approval which apparently is not required. I have already held that a final inspection is warranted only if there was no such procedure by MCI. If the MCI conducts inspection and Central Government grants permission further inspection is only a futile exercise. That being the situation, in the absence of any other reason for the University to specify regarding the refusal to grant affiliation, I am of the view that a direction as prayed for can be granted. Accordingly these writ petitions are disposed as under: i) W.P.C.No.14114 of 2013 is allowed quashing Ext.P18 and directing the University to grant affiliation to the petitioner's college for the academic year 2011-2012. It is W.P.C..Nos.1422 of 2013 & conn.cases 45 made clear that if the college requires to comply with any requirements insisted by the University other than the requirements insisted by MCI it shall be open for the university to grant provisional affiliation subject to fulfillment of such conditions within a specified period. ii) In W.P.C.Nos.1422 and 2363 of 2013 the University is directed to register the students and permit them to continue their studies in the college. iii) In regard to the affiliation of the college for the academic year 2013-2014 is concerned, the same may be subject to any decision taken by the University on any application filed by the petitioner in that regard. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C..Nos.1422 of 2013 & conn.cases 46 W.P.C..Nos.1422 of 2013 & conn.cases 47 W.P.C..Nos.1422 of 2013 & conn.cases 48