Kerala High Court
The Principal vs Kerala University Of Health ... on 5 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
W.P.(C)No.26923 OF 2020(M)
PETITIONER:
THE PRINCIPAL, CENTURY INTERNATIONAL
INSTITUTE OF DENTAL SCIENCE AND RESEARCH CENTRE,
POINACHI, KASARAGODE -671541.
BY ADVS.
SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SRI.TONY GEORGE KANNANTHANAM
SRI.THOMAS GEORGE
SRI.ALEX GEORGE (CHAMAPPARAYIL)
SHRI.EBEE ANTONY
RESPONDENTS:
1 KERALA UNIVERSITY OF HEALTH SCIENCES,
REPRESENTED BY ITS REGISTRAR,
MEDICAL COLLEGE P.O., TRICHUR-680596.
2 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HEALTH & FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.
3 THE COMMISSIONER FOR ENTRANCE EXAMINATION,
SANTHI NAGAR, TRIVANDRUM-695001.
R1 BY SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY
R2-R3 BY SMT K.AMMINIKUTTY -SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.26923 OF 2020(M) 2
JUDGMENT
The petitioner is the Principal of a Self-financing Dental
College, namely, Century International Institute of Dental Science &
Research Centre, conducting BDS course with an annual intake of
100 seats, on the strength of the Letter of Permission granted by
the Central Government, based on the recommendation made by
the Dental Council of India, and the provisional affiliation granted
by the 1st respondent Kerala University of Health Sciences. The
petitioner has filed this writ petition under Article 226 of the
Constitution of India, seeking a writ of certiorari to quash Ext.P10
order dated 04.05.2020 of the 1st respondent University, whereby
the application made by the petitioner for continuation of
provisional affiliation for BDS course for the academic year 2020-
21, stands rejected. Seeking reconsideration of the decision taken
in Ext.P10 order, the petitioner filed Ext.P11 appeal dated
20.09.2020 before the Vice Chancellor of the 1 st respondent
University. By Ext.P12 communication dated 27.11.2020 of the 1 st
respondent University, the petitioner was informed that the request
made in Ext.P11 cannot be considered favourably since the
application for continuation of provisional affiliation was rejected
based on grave deficiencies found in the petitioner's college during
two inspections conducted. The petitioner has also sought for a
declaration that the college is entitled to have admission for BDS
course for the academic year 2020-21 or in the alternative, a writ
of mandamus commanding the 1st respondent University to issue
continuation of affiliation for BDS course, for the academic year
2020-21; and a writ of mandamus commanding the 3rd respondent
Commissioner for Entrance Examinations to include the name of
the petitioner's college in centralised allotment process for
admission to BDS course, for the year 2020-21 itself.
2. On 04.12.2020, when this writ petition came up for
admission, the learned Standing Counsel for the 1st respondent
University sought time to get instructions.
3. A statement has been filed on behalf of the 1 st
respondent, by the learned Standing Counsel for the University,
opposing the reliefs sought for in this writ petition.
4. Heard the learned counsel for the petitioner, learned
Standing Counsel for the 1st respondent University and also the
learned Senior Government Pleader for respondents 2 and 3.
5. The issue that arises for consideration in this writ
petition is as to whether any interference is warranted on Ext.P10
order dated 04.05.2020 of the 1st respondent University, whereby
the application made by the petitioner for continuation of
provisional affiliation to the petitioner's college for conducting BDS
course, for the academic year 2020-21, stands rejected for the
reasons stated therein.
6. The document marked as Ext.P1 is the notification dated
14.10.2015 of the Central Government granting recognition to BDS
degree awarded by the 1st respondent University in the petitioner's
college with 100 seats, if granted on or after 04.03.2015. The
document marked as Ext.P2 is an order dated 30.09.2020 of the 1st
respondent University, whereby the petitioner's college has been
granted continuation of provisional affiliation for BDS course for the
academic year 2019-20, with an annual intake of 100 seats. The
petitioner applied for continuation of provisional affiliation for the
academic year 2020-21. The University issued Ext.P3 letter dated
10.01.2020 requiring the petitioner to produce clearance certificate
from the Kerala State Pollution Control Board and licence from
Chemmanad Grama Panchayat for running the college. The
petitioner submitted a reply stating that the petitioner has already
made arrangement for collection and disposal of bio-medical waste
with the Indian Medical Association Goes Eco Friendly (IMAGE), as
evidenced by Ext.P5 letter of affiliation dated 14.12.2019 and that
the application with the Pollution Control Board is pending. The
document marked as Ext.P6 is a receipt dated 16.09.2010 issued
by Chemmanad Grama Panchayat accepting registration fee and
the document marked as Ext.P7 is the consent to operate dated
15.02.2020 issued by the Kerala State Pollution Control Board,
which is valid upto 31.10.2024.
7. For granting continuation of provisional affiliation, the
Inspection Commission of the University inspected the petitioner's
college and submitted a report dated 05.12.2019, which was placed
before the Scrutiny Committee. On verification of the report of the
Inspection Commission, the Scrutiny Committee pointed out the
following deficiencies in its report dated 07.01.2020;
1. The Principal was on leave on the day of inspection
without transferring charge to Vice Principal.
2. Five faculty were on leave on the day of inspection.
3. Four faculty were on unauthorised absent.
4. Deficiency of one Reader in the department of OMFS.
5. The Clinical Requirements like Dental extractions and
RCT were not done according to the requirement.
6. No proper documentation of details of attendance,
valuation duty and satellite clinic.
Further the college has not submitted renewed MoU with
District Hospital, Kanghangad for the year 2020-21.
8. By Ext.P8 communication dated 22.01.2020, the
petitioner was informed about the deficiencies pointed out by the
Scrutiny Committee and also that, in view of the deficiencies the
application for continuation of provisional affiliation cannot be
considered favourably. In order to reconsider the application for
continuation of provisional affiliation, the petitioner was required to
submit compliance report rectifying the above deficiencies, along
with affidavit in stamp paper worth Rs.200/- to the effect that the
deficiencies noted by the Scrutiny Committee are rectified.
9. On receipt of Ext.P8, the petitioner submitted Ext.P9
compliance report dated 04.02.2020, along with necessary
documents. On receipt of Ext.P9, the University deputed an
Inspection Commission to inspect the petitioner's college. The
Inspection Commission inspected the petitioner's college and
submitted a report dated 05.03.2020, which was placed before the
Scrutiny Committee. On verification of the report of the Inspection
Commission, the Scrutiny Committee pointed out the following
deficiencies in its report dated 18.03.2020;
a. The faculty status on the day of inspection was mentioned
that 6 Medical staff and 8 Dental staff were on leave. Apart
from this 3 faculty were on duty leave for theory paper
valuation at KUHS Headquarters and one reader in the Dept.
of Orthodontics was absent (on long leave). On scrutinising
the supporting documents submitted it is noted that:
i. Of the 6 Medical staff on leave, the leave application of
only 3 were sanctioned by Principal.
ii. Among the 3 Dental staff on valuation duty (as
reported by the college), only 1 person Dr.Avinash,
Dept of Orthodontics had attended valuation duty at
KUHS on 05.03.2020. The other 2 persons Dr.Ranjith
Madavan (Periodontics) and Dr.Anush (Oral Medicine &
Radiology) had not attended valuation duty on the day
of inspection as per University records.
iii. It was also noticed that one of the staff Dr.Shahanas
(Conservative Dentistry) whose sanctioned leave
application submitted had signed in the attendance
sheet.
iv. Dr.Sajay Bhat, Reader in the Dept of Orthodontics was
not present on the day of previous inspection as well as
on the day of current inspection. It was reported by the
college that he is on long leave. But no substitute has
been arranged so far.
b. Satellite Clinics:
No satellite clinic facilities are provided by the college
which is against the norms of KUHS as well as that of
DCI. This deficiency was pointed out during the
previous inspection also.
c. Student Feedback:
d. On interaction with students, the inspection team has
reported that there is malpractices in the conduct of
university examinations. They also mentioned that proper
checking of students before entering examination hall is not
done. Besides they have complained that the stipend given to
the interns is not as per KUHS norms.
e. Hence there is total shortage of 10 Dental and 6 Medical
staff on the day of inspection. This amount to 16 out of 92
that is around 17%. The shortage of one reader in the Dept
of Orthodontics mentioned in the previous inspection is still
not rectified.
10. The report of the Scrutiny Committee was placed before
the Governing Council and the Governing Council vide decision
No.59.38 dated 25.04.2020 decided to reject the application made
by the petitioner for continuation of provisional affiliation for the
academic year 2020-21 considering major deficiencies. The Vice
Chancellor of the University accorded sanction to implement the
decision of the Governing Council to reject the application made by
the petitioner for continuation of provisional affiliation for the
academic year 2020-21 based on major deficiencies. Based on the
said decision, the 1st respondent issued Ext.P10 order dated
04.05.2020 rejecting the application made by the petitioner for
continuation of provisional affiliation for the academic year 2020-
21.
11. The petitioner submitted Ext.P11 appeal dated
20.09.2020 before the Vice Chancellor of the University. The 1 st
respondent by Ext.P12 communication dated 27.11.2020 informed
the petitioner that the request made in Ext.P11 cannot be
considered favourably since the application for continuation of
provisional affiliation was rejected based on grave deficiencies
found in the petitioner's college during two inspections conducted.
12. The stand taken in the statement filed on behalf of the
1st respondent University is that, the University conducts inspection
in institutions through its Inspectors to assess the facilities
available and takes a decision on the basis of report of the Scrutiny
Committee. In the case of the petitioner's institution, inspection
was conducted on 05.12.2019 and the defects noted in the report
of the Scrutiny Committee were intimated to the petitioner. After
submission of compliance report, verification was done on
05.03.2020 by conducting another inspection and based on the
defects noted in the report of the Scrutiny Committee the
University took a decision to reject the application made by the
petitioner for continuation of provisional affiliation and issued
Ext.P10 order dated 04.04.2020. Though notice was issued to the
petitioner intimating the deficiencies noted by the Scrutiny
Committee, no earnest effort was taken to rectify the same, apart
from submitting Ext.P9 compliance report. It is settled law that
compliance of the conditions on paper alone is not sufficient to
consider the application. The 1st respondent would point out that
the petitioner has not raised any serious objections to the findings
in the report, but contends that the University is not competent to
decide the question of affiliation. Recognition and affiliation are
distinct and different. Recognition is granted by the statutory
council or the respective government, whereas grant of affiliation is
within the competence of the examining body. In the case of dental
courses, the apex body is the Dental Council of India.
13. One of the deficiencies pointed out in Ext.P8 is that no
satellite clinic facilities are provided by the college. In Ext.P9
compliance report, the petitioner has stated that the college is in
the process of establishing new satellite clinic and will be fully
compliant with the University requirement. In the inspection
conducted after the submission of Ext.P9 compliance report it was
noticed that no satellite facilities are provided by the college. The
Scrutiny Committee in its report dated 18.03.2020 noticed that no
satellite facilities are provided by the college, which is against the
norms of the University as well as that of the Dental Council of
India. In the inspection conducted on 05.12.2019 and in the
inspection conducted on 05.03.2020 after submission of Ext.P9
compliance report, deficiency in faculties was noticed by the
Inspectors and that deficiency was also noted in the report of the
Scrutiny Committee dated 07.01.2020 and 18.03.2020, as
evidenced by Exts.P8 and P10.
14. In Ext.P10, it is stated that, on interaction with students,
the inspection team has reported that there are malpractices in the
conduct of university examinations. They also mentioned that
proper checking of students before entering examination hall is not
done. Besides they have complained that the stipend given to the
interns is not as per the University norms. The said allegations
made by the students, cannot be the basis for rejection of the
application made by the petitioner for continuation of provisional
affiliation, without affording the petitioner an opportunity to furnish
explanation. A reading of Ext.P10 order would show that the decision
taken by the University to reject the application made by the petitioner
for continuation of provisional affiliation, for the academic year 2020-21,
is based on the deficiencies pointed out in the report of the Scrutiny
Committee and not on the above allegations by the students.
15. As already noticed, the rejection of the application made
by the petitioner for continuation of provisional affiliation is based
on the deficiencies noted in the reports of the Inspection
Commission and the Scrutiny Committee. Based on the aforesaid
deficiencies, a decision has been taken by the Governing Council to
reject the application made by the petitioner for continuation of
provisional affiliation for the academic year 2020-21. As can be
seen from Ext.P10 order dated 04.05.2020, the Vice Chancellor has
already accorded sanction to implement the decision of the
Governing Council.
16. In Medical Council of India v. The Principal, KMCT
Medical College [(2018) 9 SCC 766] it was contended before
the Apex Court that the inspection was not properly conducted.
Repelling the said contention, the Apex Court held as follows;
"15. We do not deem it necessary to deal with the submission
made on behalf of the College regarding the inspection not being
properly conducted. This Court has repeatedly said that a decision
taken by the Union of India on the basis of a recommendation of
an expert body regarding the inadequacy of facilities in medical
colleges cannot be interfered with lightly. Interference is
permissible only when the colleges demonstrate jurisdictional
errors, ex facie perversity or mala fide. [See :Manohar Lal
Sharma v. Medical Council of India (2013) 10 SCC 60 and
Medical Council of India v. Kalinga Institute of Medical
Sciences (2016) 11 SCC 530]. As no case is made out by the
College for interference with the inspection report, we decline the
request of Mr. Sibal for remand of the matter to the High Court."
17. The deficiencies noted in the report of the Scrutiny
Committee, which have already been referred to in Ext.P10 order of
the 1st respondent are serious in nature. It is based on those
deficiencies, the University has rejected the request made by the
petitioner for continuation of provisional affiliation for the academic
year 2020-21. Any interference on the finding of the 1 st respondent
University on those deficiencies, which are based on the inspection
report of the experts in the field, is legally permissible under Article
226 of the Constitution of India, only when the petitioner
demonstrate jurisdictional errors, ex facie perverse or mala fide. In
the instant case, in the absence of any vitiating circumstances, no
interference is warranted on the findings in Ext.P10 order on the
deficiencies pointed out in the report of the Scrutiny Committee.
18. In Medical Council of India v. State of Karnataka
[(1998) 6 SCC 131], while dealing with the admission made in
excess of intake capacity fixed by the Council, the Apex Court held
that, a medical student requires gruelling study and that can be
done only if proper facilities are available in a medical college and
the hospital attached to it has to be well equipped and the teaching
faculty and doctors have to be competent enough that when a
medical student comes out, he is perfect in the science of
treatment of human beings and is not found wanting in any way.
The country does not want half-baked medical professionals coming
out of medical colleges when they do not have full facilities of
teaching and were not exposed to patients and their ailments
during the course of their study.
19. In K.S. Bhoir v. State of Maharashtra [(2001) 10
SCC 264] the Apex Court held that sub-section (1) of Section 10A
of the Indian Medical Council Act, 1956 is a substantive provision in
itself and begins with non obstante clause 'notwithstanding
anything contained in the Act', it means there is a prohibition in the
matter of an increase in the admission capacity in a medical college
unless previous permission of the Central Government is obtained
in accordance with the recommendation of the Medical Council of
India. The entire scheme of Section 10A of the Act has to be read
in consonance with other sub-sections to further the object behind
the amending Act. The object being to achieve the highest standard
of medical education. The said objective can be achieved only by
ensuring that a medical college has the requisite infrastructure to
impart medical education. The object of amending Sections 10A,
10B and 10C was for a specific purpose of controlling and
restricting unchecked and unregulated mushroom growth of
medical colleges without requisite infrastructure resulting in decline
in the maintenance of highest standard of education. The highest
standard of medical education is only possible when the
requirement of provisions of Section 10A and the Regulations are
complied with. It has been experienced that, unless there is
required infrastructure available in the medical college, the
standard of medical education has declined. Unless an institution
can provide complete and full facilities for training to each student
who is admitted in various disciplines, the medical education would
remain incomplete and the medical college would be turning out
half-baked doctors which, in turn, would adversely affect the health
of the public in general.
20. In Medical Council of India v. Chairman, S.R.
Educational and Charitable Trust [2018 SCC OnLine SC
2276 : 2018 (4) KLT SN 70] the Apex Court held that,
considering the deficiencies [i.e., lack of patients, teaching faculty,
sufficient number of surgical procedures, etc.], permitting an
unequipped medical college to impart medical education without
proper infrastructure and faculty would be against the efficacious
medical education. Patients serve as the object of teaching. By
such an approach ultimately the interest of the society would suffer.
Half-baked doctors cannot be left loose on society like drones and
parasites to deal with the life of patients in the absence of proper
educational training. It would be dangerous and against the right to
life itself, in case unequipped medical colleges are permitted to
impart substandard medical education without proper facilities and
infrastructure. In the said decision, the Apex Court noticed that, as
per clause (a) of the proviso to Regulation 8(1) of the Medical
Council of India Establishment of Medical College Regulations,
1999, as amended by the Medical Council of India Establishment of
Medical College (Amendment) Regulations, 2010, in respect of
colleges in the stage upto II renewal (i.e., admission of third batch)
if it is observed during any regular inspection of the institute that
the deficiency of teaching faculty and/or Residents is more than
30% and/or bed occupancy is less than 60%, such an institute will
not be considered for renewal of permission in that academic year.
21. In Mar Gregorious Memorial Muthoot Medical
Centre v. Kerala University of Health and Allied Sciences
[2011 (4) KHC 333], the question that came up for consideration
before a learned Judge of this Court in W.P.(C)Nos.24933 of 2011
and 26443 of 2011 was as to whether Kerala University of Health
Sciences is supposed to act just as a 'rubber stamp' in the matter
of granting affiliation to institutions invoking the power under
Section 50 or 53 of the Kerala University of Health Sciences Act,
2010, once approval is granted in respect of the courses and
infrastructure by Indian Nursing Council and Kerala Nurses and
Midwives Council. Relying on two Full Bench decisions of this Court
in Vikram Sarabhai Educational Trust & B.Ed College v.
University of Calicut [2008 (2) KHC 647] and K. Velayudhan
Memorial Trust [2010 (3) KHC 23] it was contended that the
University does not have any power or authority to decline
affiliation in respect of B.Sc Nursing course or Post Basic B.Sc
Nursing course sanctioned by Nursing Council or reduce the intake
by stipulating some or other norms of their choice.
22. In Mar Gregorious Memorial Muthoot Medical
Centre this Court found considerable force in the submission made
by the learned Standing Counsel for the University that the decision
rendered by the Full Bench is not an authority to hold that
affiliation to be given by the University is only an empty formality
or that once sanction is given by the State Council as aforesaid,
affiliation to be given by the University is automatic. There is no
such declaration of law in the decision rendered by the Full Bench
referring to the relevant provisions of the University Act/Statute or
as to the relative rights and liberties of the University in relation to
the powers and authority of the Indian Nursing Council/Kerala
Nurses and Midwives Council. In Upasana College of Nursing v.
Kerala University for Health and Allied Sciences [2010 (4)
KHC 224] it was held that, granting of affiliation by the University
is not an automatic exercise once sanction/permission is obtained
from Indian Nursing Council/ Kerala Nurses & Midwives Council.
Interference was declined and the writ petitions preferred by the
concerned institutions were dismissed as devoid of any merit. The
matter was taken up in appeal by the aggrieved institutions. After
detailed hearing, the Division Bench, vide judgment dated
13.10.2010 in W.A.No.1715 of 2010 and connected cases, held that
the process of affiliation was never automatic. The grant of
affiliation is not an empty formality by the University. The
University which awards the degree certificates can always ensure
that students undergo the proper course study in an eligible
institution in accordance with the curriculum prescribed by the
University. Further, referring to the relevant provisions under the
Calicut University Act and the Calicut University First Statutes,
1977, it has been held by a Division Bench of this Court in
University of Calicut v. Amala Institute of Medical Sciences
[2009 (2) KHC 71] that the University is having ample power to
inspect the college seeking affiliation and that the institution is
bound to furnish any information called for in this regard. It has
also been held that, if there is any serious deficiency in the manner
of running the college, the University can definitely take action
against the college and 'dis-affiliate' it; the power to dis-affiliate
being corollary to the power to affiliate and that the University is
vested with the power to conduct necessary inspection and to
satisfy itself as to the availability of infrastructure and such other
aspects. As the primary function of the University is to guarantee
quality education, maintaining/ regulating academic standards of
the affiliated institutions, it is open for the University to prescribe
conditions for recognition of the institutions, which is not in conflict
with the norms prescribed by the INC under the Central Act. As
such, the contention of the petitioners that the respondent
University is bound to 'sign on the dotted lines' for granting
affiliation, the petitioners having obtained sanction/approval from
the Central/State Council, is wrong and unfounded.
23. In K.V.M. Trust v. Kerala University of Health &
Allied Sciences [2011 (4) KHC 948] [W.A.No.1528 of 2011
arising out of W.P.(C)No.26443 of 2011] the appellant contended,
inter alia, that once the Indian Nursing Council and the State
Nurses and Midwives Council accorded permission for the intake of
50 students, the respondent University has no authority to restrict
the intake to a lesser number. The Division Bench, relying on the
decisions in Amala Institute of Medical Sciences [2009 (2)
KHC 71] and Upasana College of Nursing [2010 (4) KHC 224]
and also the Regulations of the Indian Nursing Council held that the
permission accorded by the Indian Nursing Council is basing upon a
prima facie satisfaction of the availability of the infrastructure
facilities and it is for the State Council to accord its permission as
well as the respondent University to conduct inspection and satisfy
the availability of the infrastructure facilities for running the course
before granting affiliation. Therefore, the Division Bench upheld the
finding of the learned Single Judge that granting affiliation is not an
empty formality.
24. In Maa Vaishno Devi Mahila Mahavidyalaya v. State
of U.P. [2013 (2) SCC 617] the Apex Court, in the context of the
National Council for Teacher Education (Recognition Norms and
Procedure) Regulations, 2009 held that, grant of recognition or
affiliation to an institute is a condition precedent to running of the
courses by the Institute. If either of them is not granted to the
institute, it would not be in a position to commence the relevant
academic courses. There is a possibility of some conflict between a
University Act or Ordinance relating to affiliation with the provisions
of the Central Act. In such cases, the matter is squarely answered
in the case of State of Maharashtra v. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya [(2006) 9 SCC 1] where the
Court stated that after coming into operation of the Central Act, the
operation of the University Act would be deemed to have become
unenforceable in case of technical colleges. It also observed that
provision of the Universities Act regarding affiliation of technical
colleges and conditions for grant of continuation of such affiliation
by university would remain operative but the conditions that are
prescribed by the university for grant and continuation of affiliation
must be in conformity with the norms and guidelines prescribed by
the National Council for Teacher Education (NCTE). Under Section
14 of the National Council for Teacher Education Act, 1993 and
particularly in terms of Section 14(3)(a), the NCTE is required to
grant or refuse recognition to an institute. It has been empowered
to impose such conditions as it may consider fit and proper keeping
in view the legislative intent and object in mind. In terms of Section
14(6) of the Act, the examining body shall grant affiliation to the
institute where recognition has been granted. In other words,
granting recognition is the basic requirement for grant of affiliation.
It cannot be said that affiliation is insignificant or a mere formality
on the part of the examining body. It is the requirement of law that
affiliation should be granted by the affiliating body in accordance
with the prescribed procedure and upon proper application of mind.
Recognition and affiliation are expressions of distinct meaning and
consequences. In the case of Chairman, Bhartia Education
Society v. State of Himachal Pradesh [(2011) 4 SCC 527] it
was held that the purpose of recognition and affiliation is different.
In the context of the Act, affiliation enables and permits an
institution to send its students to participate in public examinations
conducted by the examining body and secure the qualification in
the nature of degrees, diploma and certificates. On the other hand,
recognition is the licence to the institution to offer a course or
training in teaching education. The Court also emphasised that the
affiliating body/examining body does not have any discretion to
refuse affiliation with reference to any of the factors which have
been considered by the NCTE while granting recognition. The
examining body can impose conditions in relation to its own
requirements. These aspects are (a) eligibility of students for
admission; (b) conduct of examinations; (c) the manner in which
the prescribed courses should be completed; and (d) to see that
the conditions imposed by the NCTE are complied with. Despite the
fact that recognition itself covers the larger precepts of affiliation,
still the affiliating body is not to grant affiliation automatically but
must exercise its discretion fairly and transparently while ensuring
that conditions of the law of the university and the functions of the
affiliating body should be complementary to the recognition of
NCTE and ought not to be in derogation thereto.
25. In view of the law laid down in the decisions referred to
supra, conclusion is irresistible that this Court, in exercise of the
extra ordinary jurisdiction under Article 226 of the Constitution of
India, can interfere with a decision taken by the University, which is
an expert body, in refusing consent of continuation of provisional
affiliation for a dental college, only when compelling circumstances
warranting interference in such an order is made out. As held by
the Apex Court in the decisions referred to supra, which were
rendered in the context of provisions of the Indian Medical Council
Act, 1956, which are pari materia with the provisions under the
Dentist Act, 1948 a dental college has to be equipped with
necessary infrastructure, faculty, clinical materials, etc. in order to
ensure that a dental student is getting ample opportunity to
undergo medical education, as per the curriculum prescribed by the
University and also the central agency, i.e., the Dental Council of
India. Unless a dental college can provide complete and full
facilities for training to each student who is admitted to that
college, the medical education would remain incomplete and the
college would be turning out half-baked doctors which, in turn,
would adversely affect the health of the public in general.
26. Another contention raised by the learned counsel for the
petitioner is that in the case of medical and dental colleges, the
Central Government has to issue Letter of Permission to admit
students every year, till the college gets recognition. Once the
college is recognised no Letter of Permission from the Central
Government is required. Therefore, in respect of a medical college
or dental college which gets recognition of the Central Government,
the University cannot confine its affiliation to each academic year,
by granting provisional affiliation to the course, instead of granting
affiliation to the college.
27. The learned Standing Counsel for the University would
contend that the Regulations issued by the Dental Council in the
case of dental courses are by exercising the powers under Entry 66
of List I, of the Seventh Schedule of the Constitution of India,
whereas the University is a creation of the State under Entry 25 of
List III. Therefore, the area of operation of the Regulations of the
Dental Council of India and that of the University are different.
There is no conflict or repugnancy in the Regulations of the Dental
Council of India and that of the University. The learned Standing
Counsel for the University would point out that, in the writ petition,
the petitioner has not stated as to how the University norms is in
conflict with the norms of the Dental Council of India. The
petitioner has no case that the affiliation granted by the University
to the petitioner's college is permanent. The University granted
provisional affiliation for a particular period, which is being
extended on the expiry of that period. For grant of extension of
such provisional affiliation, the University adopts the same norms
which are applied for grant of affiliation. Though the word used is
continuation of affiliation, the same is granted on the basis of a
fresh application and it is a fresh grant of affiliation for the relevant
period.
28. As already noticed, by Ext.P2 order dated 30.09.2020 of
the 1st respondent University, based on the application made by the
petitioner for continuation of provisional affiliation, granted
continuation of provisional affiliation to the petitioner's college for
BDS course, for the academic year 2019-20, with an annual intake
of 100 seats. Seeking continuation of provisional affiliation for the
academic year 2020-21, the petitioner submitted application, as
stated in paragraph 11 of the writ petition. Based on that
application the 1st respondent University considered the question of
continuation of provisional affiliation for the academic year 2020-21
and passed Ext.P10 order dated 04.05.2020. When the request
made in that application is one for continuation of provisional
affiliation for the academic year 2020-21, in a writ petition filed
challenging Ext.P10 order, the petitioner cannot raise a contention
that once recognition is granted by the Central Government, there
is no scope for continuation of provisional affiliation by the 1 st
respondent University for each academic year.
29. Other than the challenge made against Ext.P10 order
dated 04.05.2020 of the 1st respondent University, the further
reliefs sought for are for a declaration that the college is entitled to
have admission for BDS course for the academic year 2020-21; or
in the alternative, a writ of mandamus commanding the 1st
respondent University to issue continuation of affiliation for BDS
course, for the academic year 2020-21; and a writ of mandamus
commanding the 3rd respondent Commissioner for Entrance
Examinations to include the name of the petitioner's college in
centralised allotment process for admission to BDS course, for the
year 2020-21 itself.
30. As can be seen from Ext.P10 order dated 04.05.2020,
the application made by the petitioner for continuation of
provisional affiliation stands rejected on account of various
deficiencies noted in the report of the Scrutiny Committee. As
already noticed hereinbefore one of the deficiencies pointed out in
Ext.P8 is that no satellite clinic facilities are provided by the college.
Even after submission of Ext.P9 compliance report the very same
deficiency was noted by the Scrutiny Committee in its report dated
18.03.2020, as evidenced by Ext.P10 order dated 04.05.2020. In
the said order shortage of faculties is also noticed. When the
deficiencies noted in Ext.P10 are major deficiencies, the petitioner's
college, which is not having complete and full facilities for training
as per the relevant Regulations, cannot be permitted to impart
medical education, since such a college would be turning out half-
baked dentists, which, in turn, would adversely affect the health of
the public in general. Therefore, the petitioner is not entitled for the
declaratory relief and also the alternative relief sought for in this
writ petition.
31. In State of U.P. v. Harish Chandra [(1996) 9 SCC
309] the Apex Court held that no mandamus can be issued to
direct the Government to refrain from enforcing the provisions of
law or to do something which is contrary to law. In Bhaskara Rao
A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that,
generally, no Court has competence to issue a direction contrary to
law nor can the Court direct an authority to act in contravention of
the statutory provisions. The courts are meant to enforce the rule
of law and not to pass the orders or directions which are contrary
to what has been injected by law.
32. In view of the law laid down in the decisions referred to
supra, no mandamus can be issued directing the 1st respondent
University to grant continuation of affiliation or to direct the 3 rd
respondent to include the name of the petitioner's college for
centralised allotment process for allotting students for BDS course,
for the academic year 2020-21, since no mandamus can be issued
to direct an authority to do something contrary to law.
In the result, the petitioner is not entitled to any of the reliefs
sought for. The writ petition fails and the same is dismissed.
Sd/-
ANIL K.NARENDRAN
JV JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED
14.10.2015 ISSUED BY THE UNDER SECRETARY
TO THE GOVERNMENT OF INDIA.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 30.9.2019
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 10.1.2020
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE REPLY DATED 22.1.2020
SUBMITTED TO THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 14.12.2019
FROM THE INDIAN MEDICAL ASSOCIATION GOES
ECOFRIENTLY.
EXHIBIT P6 TRUE COPY OF RECEIPT DATED 16.9.2010 OF
FEE FOR REGISTRATION OF DENTAL COLLEGE.
EXHIBIT P7 TRUE COPY OF THE CONSENT DATED 12.2.2020
OF KERALA STATE POLLUTION CONTROL BOARD.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 22.1.2020
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE COMPLIANCE REPORT DATED
4.2.2020 WITH ANNEXURES.
EXHIBIT P10 TRUE COPY OF THE ORDER DATED 4.5.2020
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE APPEAL DATED 20.9.2020
FROM THE PETITIONER.
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 27.11.2020
ISSUED FROM THE 1ST RESPONDENT.
