Director, Jubilee Mission Hospital Vs. University of Calicut and ors. - Court Judgment

V. Giri, J.

1. Almost identical contentions are raised in these two writ petitions. The issues which arise for consideration are also identical. Therefore they have been heard together and are being disposed of by this common judgment. I will refer to the facts in WPC. No. 28130/2008, which has been taken as the leading case.

2. The Amala Institute of Medical Science, of which the petitioner is the Director, established a medical college after obtaining approval in that regard from the Government of India on the recommendation of the Medical Council of India in the year 2003-2004. Taking note of the said approval as well, the respondent University granted affiliation for the year 2003-2004 as per Ext.P1 order. The affiliation granted in Ext.P1 was made subject to certain conditions. The relevant portion of Ext.P1 reads as follows:

The affiliation granted is purely provisional for the year 2003-04 and the college has to apply for continuation of provisional affiliation for the ensuing years after remitting the required fees.

Selection and admission of students shall be made from the list published by the Entrance Commissioner as per the rules and norms framed by the University, Government and the MCI from time to time failing which, the affiliation granted will automatically be cancelled.

The provisional affiliation granted in this behalf was extended for the period 2004-2005 (Ext.P2) and 2005-2006 (Ext.P3).

3. Before commencement of the academic year 2006-2007, the petitioner made an application for affiliation and by Ext.P4 order dated 4-9-2007 sanction was accorded by the Vice Chancellor of the University for continuation of provisional affiliation to MBBS course in Amala Institute of Medical Science with an intake of 100 students. It was further directed that the affiliation granted was strictly provisional and only for the academic year 2006-2007 and the college has to apply for continuation of affiliation for the ensuing years remitting the fee fixed by the University from time to time along with a copy of the approval order from the Medical Council.

4. The Medical Council of India granted approval for the college 2007-08 as evidenced by Ext.P5 and the petitioner sought for extension of the University affiliation. By Ext.P6 Setter the University sought for details of the admission of students effected during 2007-08. By Ext.P7 the petitioner gave a reply stating that the details called for in Ext.P6 had nothing to do with the extension of affiliation. The petitioner sent Ext.P8 letter dated 22.2.2008 as a reminder to the application for extension of affiliation for the year 2007-2008. Reference is made to Ext.P9 circular issued by the University addressed to the Principals of all affiliated colleges requiring them to forward copies of provisional affiliation for the concerned year along with applications for presenting students for examination from March, 2008 onwards. Liberty was given in this regard to colleges which were yet to apply for continuation of affiliation up to 2007-08.

5. The petitioner applied for extension of affiliation on 4.3.2008 for 2008-2009. The requisite fee was remitted. By Ext.P11 order the Government of India extended approval for the year 2008-09. Orders are yet to be passed on the application for extension of affiliation for 2007-2008 and 2008-09. In the meanwhile, certain changes took place as regards the mode of admission adopted by the self financing colleges in the State. Some of the self financing colleges in the State entered into an agreement with the Government for sharing of seats.

6. The petitioners in these two writ petitions did not follow suit. The petitioners in these two writ petitions did not follow suit. They proceeded to effect admissions by adopting the marks obtained by the students in the entrance best conducted by the Commissioner of Entrance Examinations and the marks obtained by the students in the qualifying examination for the core subjects as the basis. It may have to be mentioned here that certain disputes arose as regards the method of admission adopted.

7. These writ petitions came to be filed in the wake of Ext.P14, a list of colleges affiliated to the Calicut University in Thrissur District published in the web site hosted by the University. It seems that earlier two colleges in question viz. Amala Institute of Medical Science and Jubilee Mission Medical College were listed against serial Nos. 43 and 44 in Thrissur District, it could be seen from Ext.P14 that the colleges listed against serial Nos. 43 and 44 were deleted. Almost at the same time Ext.P15 press release was issued from the University declaring that these two colleges as well as two other colleges are not affiliated to the University. The petitioners contended that this generated a panic among the students and the parents who might have entertained a legitimate apprehension that the students prosecuting studies in these two institutions may not be able to complete the course or obtain a degree on successful completion of the same. Further the first batch of MBBS course admitted in these two institutions in the year 2003-04 were completing their course and have to face the final examinations. A team disputed by the Medical Council of India had to inspect the colleges, at the time when the practical examinations were to be conducted for the final year students.

8. It is only thereafter that the MCI will be required to confirm whether the course offered by the institutions, and the consequential degree that may be awarded by the University to which these two institutions are affiliated are eligible to be recognised and consequently included in the schedule to the Medical Council Act in terms of Section 11(2) of the Indian Medical Council Act, 1956. Since the issue of continuation of affiliation for 2007-08 and 2008-09 is to be finalised, these writ petitions came to be filed essentially seeking a direction to the University to include the name of these two institutions in the list of colleges affiliated to the University and also for a direction to the University to forward to the Medical Council of India the particulars required for enabling them to conduct inspection at the time of practical examination of the final year, on the premise that these two institutions are affiliated institutions. Certain other consequential reliefs also have been sought for.

9. A detailed counter affidavit has been filed by the University and the petitioner has filed a reply affidavit. I heard Mr. Kannanthanam, learned senior Counsel for the petitioners, Sri. P.C. Sasidharan, learned Counsel for the Calicut University, Sri. Alexander Thomas learned Counsel for the Medical Council of India and the Assistant Solicitor General for the Central Government.

10. Reference will have to be made to certain salient features of the Calicut University Act. Section 23 of the Calicut University Act (hereinafter referred to as the Act) deals with the powers of the syndicate. Section 23(1) is relevant and reads as follows:

Section 23(i) to affiliate institutions in accordance with the terms and conditions of such affiliation prescribed in this Act and the Statutes.

11. Chapter 23 of the First statutes framed under the Act deals with the affiliation of colleges and lays down the procedure to be adopted in granting affiliation of new college and in new courses. Clause 7 deals with the procedure on receipt of application. Clause 9 deals with the grant of affiliation. The University may appoint a commission to inspect the proposed site of a new college, or to make a physical verification of the facilities that may exist for starting the new college, if the application is considered favourably by the University. As per Clause 9(b), the grant of affiliation shall depend upon the fulfillment by the management of all the conditions that are specified here or that may be specified later for the satisfactory establishment and maintenance of the proposed institutions/courses of studies. Unless all the conditions are fulfilled before the commencement of the academic year, to new college or additional courses shall be permitted to be started during the year. There are certain other conditions prescribed which may not be strictly relevant for this purpose.

12. Clause 12 of the statute is relevant and therefore extracted hereunder:

12. Conditional affiliation: 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.

13. The concept of provisional affiliation comes out in Clause 4, which is extracted hereunder:

Application to be made by whom: The applications for affiliation shall be made in the case of Government Colleges by the Head of the Department and in the case of Private Colleges by the Educational Agency.

14. The provisional affiliation should be 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 are to be specified in the order of the syndicate granting affiliation. Considerable controversy has been generated from a reading of Clause 12 and Counsel on either side have advanced their versions regarding Clause 12. Mr. Kannanthanam contends that if the conditions stipulated in the order of provisional affiliation are not fulfilled by the end of the period fixed, then the affiliation ceases to operate automatically. But if the conditions are fulfilled or for that matter there is no order or proceedings by the competent authority holding that the conditions are not fulfilled, then confirmation of the affiliation should follow at the end of the period of the provisional affiliation. This has to be reported to the Senate.

15. Mr. Sasidharan on the other hand contends that provisional affiliation is a perfectly legitimate exercise of power by the University. Provisional affiliation granted in these cases is for one year and it was extended up to 2006-07. The provisional affiliation was given subject to conditions for a specific period. Though it may not be a case where affiliation ceases automatically since the provisional affiliation was for a specific period, it is a case where these two institutions have been run without the umbrella of affiliation by the University during the last two years from the commencement of the academic year of 2007. If that be the case, there is nothing wrong in the University treating two colleges as bereft of affiliation in terms of the provisions of the University Act and the Statutes. The only relief the petitioners should seek in these circumstances, according to Mr. Sasidharan, is a direction to the University to take a decision on the application for continuation of provisional affiliation for the year 2007-08 and for the year 2008-2009.

16. It is further contended that what was granted by the University was a conditional affiliation and one of the conditions imposed in this behalf to the manner in which the institutions had admitted students. Specific reference is made in this regard to the following clauses in Exs.Pl to P4 which are identical:

The affiliation granted is purely provisional for the year 2003-04 and the college has to apply for continuation of provisional affiliation for the ensuing years after remitting the required fees.

Selection and admission of students shall be made from the list published by the Entrance Commissioner as per the rules and norms framed by the University, Government and the MCI from time to time failing which, the affiliation ranted will automatically be cancelled.

17. Mr. Sasidharan contends that two institutions in question had not selected and admitted students from a list published by the Entrance Commissioner as per the rules and norms framed by the University, Government and the Medical Council of India and consequently the instant cases must be treated as one where affiliation granted was automatically cancelled. It is further contended by him that the above mentioned condition is a part and parcel of the order of affiliation. The petitioners have without demur accepted Ext.P1 and Consequently should be treated as having accepted the condition in Ext.P1 to P4 as well. They have subsequently applied for the continuation of affiliation and even at that time they had no demur as regards the clause. Mr. Sasidharan contends that therefore provisional affiliation already granted should be treated as automatically cancelled both in terms of the statute as also in terms of the order of affiliation and in such a case the remedy available to the petitioner would be to apply for fresh affiliation. The University would inspect the facilities and then deal with such application for affiliation in accordance with the University Act and the Statute therein.

18. As stated above Clause 6 in Chapter 23 of the First Statute deals with the power of the syndicate to grant affiliation. The application seeking affiliation is to be considered by the syndicate not later than 31st of March preceding the academic year in which the college/courses are proposed to be started. In my view there must be a wisdom behind the legislature stipulating a cut off date for the syndicate to decide the application for affiliation in terms of Clause 6. A local enquiry should be made by the competent Commission and on the basis of the commission report, the University is required to take a decision under Clause 3 of the Statute in the matter of grant of affiliation. As per Clause 9(c), a new college or additional course before the commencement of the academic year shall not be started unless the conditions in the orders of affiliation are fulfilled. The conditions which could be imposed in this regard, would relate to staff, equipment, library, reading room, play ground, hostels etc.

19. Clause 12 of the statute deals with a case where the affiliation granted may be provisional. I do not find anything in the first statutes to indicate that the nature of the power the University is to exercise under Clause 12 is qualitatively different from the power which should be exercised under Clause 9. The University as a statutory body is obviously to act in a responsible manner and therefore even in the matter of granting provisional affiliation, the time frame that is contemplated by Clause 9 of the statute will have to inform the decision to be taken by the University. In other words, if the University decides to grant provisional affiliation either in relation to an institution or a new course, then it is necessary that such provisional affiliation is granted before the commencement of the academic year, if the period of provisional affiliation encompasses an academic year. In other words, if the University decides to grant provisional affiliation to a new institution to enable them to start a course for the academic year 2008-09, the order of provisional affiliation should under normal circumstances be issued prior to the commencement of the academic year in question.

20. If this be so, I do not find any reason why the exercise of power by the University in the matter of issuing orders of continuation of affiliation from year to year should not be done before the commencement of the concerned academic year. In other words, if the affiliation originally granted is provisional and for a fixed period, then the order extending provisional affiliation should normally be issued prior to the commencement of the ensuing academic year.

The word 'provisional' is associated with the affiliation in Clause 12 of Chapter 23 of the First Statute. Provisional affiliation should be granted for a fixed period. Statute suggests that it could be granted without a time frame as well. But where the provisional affiliation is limited by a period, then continuation of the affiliation beyond the period would be required unless the syndicate confirms the affiliation before the end of the period. The confirmation of the affiliation is to be reported to the senate.

21. Clause 14 if Chapter 23 of the First Statute deals with withdrawal or suspension of affiliation. But withdrawal or suspension of affiliation must be preceded by an enquiry and obviously the management must be given an opportunity to show cause against any proposal entertained by the syndicate in that regard. The power to withdraw or suspend an affiliation as contained in Clause 14 of Chapter 23 of the First Statute does not postulate a difference between confirmation of the affiliation or affiliation being made absolute or continuance of the provisional affiliation as the case may be. Learned Counsel for the petitioner submits that though the power to grant provisional affiliation limited by a period is vouchsafed under Clause 12, the affiliation must be treated as confirmed if within the period of provisional affiliation, the University fails to pass an order either declaring that there is non fulfillment of conditions or extending the period of affiliation as the case may be. In other words, what he advocates is a deeming provision to be effect that non exercise of the power by the University extending the period of provisional affiliation, within the period as such should result in the affiliation being treated as confirmed for the purpose of the First Statute. Once the deeming provision operates, according to him, what is then available to the University is the power under Clause 14 which enables them to withdraw or suspend the affiliation.

22. I am unable to accept the submission that non exercise of the power by the University extending the period of provisional affiliation within the said period would result in a deemed confirmation of the affiliation as such. No such deeming provision is discernible from the First Statute. But the statutory scheme as discernible from the first Statutes points to a situation where sanctity must be attached to both currency of the affiliation, provisional or otherwise and the obligation on the part of the University to take a decision, with reasons supporting the same, in the matter of either confirmation of affiliation or extension of the period of affiliation or a decision not to extend the period of provisional affiliation as the case may be. In other words, the University cannot refrain from exercising its power, in the matter of either confirming affiliation or extending the period of provisional affiliation and take up the stand that provisional affiliation granted for the period should be treated as having time expired.

23. I have already referred to the cut off date mentioned in the Statute in Chapter 23 in the matter of application for affiliation and with reference to the date within which the syndicate will have to take a decision under Clause 6 of Chapter 23 of the First Statute. Since the currency of affiliation is a sine qua non for the continued legitimacy of the courses being offered and run in any affiliated institution, it is obligatory on the part of the University to take a decision in the matter of continuance of the provisional affiliation or confirmation of the provisional affiliation before the commencement of the academic year as such. In my view, the University does not take a decision in the matter of either continuance of the provisional affiliation or confirmation of the affiliation before the expiry of the period of provisional affiliation, then the provisional affiliation must be treated as having been extended for one more year, rendering legitimacy to the affiliated institutions continuing to offer its courses in the same manner in which it was done during the currency of the provisional affiliation. In my view this certainly is absolutely required to lend sanctity to the action taken by the University and instill confidence in the mind of the students who were prosecuting different courses in the affiliated institutions. To recognise a power in the University to take a decision in the matter of continuation of the provisional affiliation at any point of time or to consider the absence of any decision by the University in the matter of continuation of provisional affiliation or confirmation of the same, as equivalent to cessation of the affiliation would tantamount to conferment of power which is not clearly spelt out by the First Statute. Even otherwise any such exercise of power would be unfair and arbitrary and violative of Article 14 of the Constitution. I am of the view that the paramount consideration namely the interests of the students, would obviously afford justification that such an interpretation be placed on the relevant First Statutes in Chapter 23.

24. Once the above position is accepted, it also has to be clarified, that even if therefore provisional affiliation is deemed to be current, during any period, by reason of the University not having taken a decision within the expiry of the period for which provisional affiliation was originally granted, it does not derogate from the right of the University to exercise its power under Clause 14 of Chapter 23 of the First Statute. But obviously the power under Clause 14 to withdraw or suspend affiliation by itself should be exercised only with prospective effect. The continuance of a provisional affiliation beyond the period for which it was originally granted by the respondent in the circumstances mentioned above, would not be affected by exercise of power under Clause 14 of Chapter 23 of the First Statute. If this be the position in law, then it follows that in the present case the two institutions should be treated as having continued on a provisional affiliation on the same terms and conditions as were incorporated in the last among the provisional affiliation orders issued in their favour for the year 2007-08 and 2008-09.

25. A other words, these two institutions should be deemed to be authorised to continue to offer courses which they were permitted to offer as per the provisional affiliation orders last granted, in their favour. It is so declared. The University shall recognise these two institutions as presently functioning with an order of provisional affiliation, subject to such terms and conditions as incorporated in the last among the provisional orders issued. I also make it clear that I have not dealt with the existence of any of the factors which the University feels is sufficient to either declare that the conditions of affiliation have not been fulfilled by these institutions or proceed to exercise the power which undoubtedly vests with the University under Clause 14 of Chapter 23 of the First Statute. I make specific reference to the contentions of the University that these two institutions have contravened the condition in the provisional affiliation order dealing with the manner in which they have effected admission over the years. If the University feels that such conditions have been contravened, then they are entitled to institute an enquiry and take such action as is available to them under the University Act and the First Statutes, subject to the parameters which have already been noted above. But subject to the above, these two institutions are entitled to be treated as functioning on the strength of provisional affiliation for the academic year 2007-08 and 2008-09.

26. In the result, the writ petitions are disposed of with the following observations and directions:

i) The two institutions viz. Jubilee Mission Medical College and Amala Institute of Medical Science should be deemed to have provisional affiliation for conducting MBBS courses, for the years 2007-08 and 2008-09 subject to the same terms and conditions as are contained in Ext. P4 order dated 4.1.2007 in both these cases.

ii) The University shall treat these two institutions as having continued on the strength of provisional affiliation order for the aforementioned two years.

iii) The above mentioned declaration is without prejudice to the right of the University to exercise its powers under Clause 14 of Chapter 23 of the Calicut University First Statutes 1977.

iv) The Government of India and the Medical Council of India shall take note of the aforementioned declaration and treat these two institutions as duly affiliated in terms of the above mentioned declaration for the years 2007-08 and 2008-09 as well.

v) The University shall pass orders in the matter of either confirmation of the affiliation or extension of the period of provisional affiliation before the end of the academic year 2008-09. The University shall in accordance with the declaration and observations made hereinabove send an intention to the Government of India under Section 11(2) of the Indian Medical Council Act fixing a date for the conduct of the practical examination for the final year students of these two institutions (which has been deferred by interim orders passed by this court) and requesting the Government of India to see that a team sponsored by the Medical Council of India inspects these two institutions at the time of conduct of the practical examinations. This shall be done without further delay, at any rate on or before 30.11.2008. The Government of India and the Medical Council of India shall take note of such intimation to be sent by the University of Calicut and depute a team to inspect these two institutions for the purpose of approval under Section 11(2) of the Indian Medical Council Act.

vi) Thereafter they shall proceed to exercise the statutory powers under the Indian Medical Council Act in the matter of recognising the final degree, that is offered by these two affiliated colleges of the University of Calicut. It is only appropriate that the University considers the declaration of the final MBBS results of the students in these two institutions who give their final examinations in the course of the academic year 2008-2009 simultaneous to the students from other recognised colleges so as to avoid any hardship to the students of these two institutions. I am sure that the University shall see that the directions are implemented and take further appropriate consequential action.