The Judgment of the Court was delivered by

K. Balakrishnan Nair, J.:—

W.A No. 241/2009:

1. The University of Calicut, the 1st respondent in the writ petition is the appellant. The 1st respondent herein was the writ petitioner. The brief of the case are the following: The 1st respondent is managing a Self Financing Medical College established under the jurisdiction of the University of Calicut. The college started functioning during the academic year 2003–04 with the approval of the Government of India, which was granted on the recommendation of the Medical Council of India (for short “MCI”). As per Ext. P1 order dated 25-10-2003, the appellant University granted provisional affiliation to the college for the year 2003–04. It was followed by Ext. P2 order dated 16-3-2005, granting provisional affiliation to the college for the academic year 2004–05. For the following year 2005–06 also, affiliation was granted provisionally as per Ext. P3 order dated 18-6-2005. All these orders contained a condition that students shall be admitted from the list published by the Commissioner for Entrance Examination, as per the rules famed by the University, the Government and the MCI from time to time, failing which affiliation will be cancelled. By Ext. P4 dated 4-9-2007, provisional affiliation was granted for the academic year 2006–07. The said order contained the following stipulation:

“Selection and admission shall be made only on the basis of the rules and regulations of the University/Government, and on the basis of the directions issued by the University/Government from time to time, failing which the affiliation granted will automatically be cancelled”.

2. As per Ext. P5 letter dated 13-7-2007, the Government of India granted permission to the College for admission of students for the year 2007–2008. After the receipt of that letter, motion for extension of the affiliation was made by the 1st respondent for the said year. The University, by Ext. P6 communication date 11-10-2007, sought for certain details concerning the admission of students for the year 2007–2008. The Principal of the college replied by Ext. P7 dated 9-11-2007, stating that the details sought for are not relevant, still he is forwarding the prospectus published by the college, which contains the details regarding the method of admission followed by it. Since there was no response to the said letter, the Principal sent Ext. P8 reminder to the University on 22-2-2008. When the application for affiliation for the year 2007–08 was pending, the 1st respondent again applied for affiliation for the year 2008–2009 on 4-3-2008. By Ext. P11 communication dated 10-6-2008, the Government of India approved sanction for admission of students for the academic year 2008–09. The Principal of the college forward Ext. P11 to the University along with Ext. P12 covering letter.

3. While so, the name of the 1st respondent's college was deleted from the list of affiliated Medical Colleges, published in the website of the Calicut University. That will be evident from Ext. P14 list downloaded from the website. The 1st respondent submits, his college was serial No. 43 in that list, which stood deleted. The said respondent also came to know that the University has addressed a communication to the MCI, requesting the Council not to sent persons to inspect the college at the time of conduct of the last semester's practical examination for the students of the first batch. The 1st respondent further added, pursuant to the said communication of the University, the MCI did not send its team for inspection of the college. In the meantime, a news item was also published in the press at the instance of the University of Calicut on 4-9-2008, stating that the 1st respondent's college has no affiliation with it. The 1st respondent, feeling aggrieved by the omission of the University to take a final decision on the applications filed by his college for affiliation for the years 2007–08 and 2008–09, approached this Court, by filing the writ petition, seeking the following reliefs:

“(a) To issue a writ of mandamus or other appropriate order or direction to direct the respondent to include the name of the petitioner's college in the list of affiliated colleges, under the University.

(b) To issue a writ of mandamus or other appropriate order or direction to direct the University to forward to the Medical Council of India the particulars required for enabling them to conduct the inspection at the time of the practical exam of the final year treating the petitioner's college as a college having affiliation.

(d) To declare that the petitioner is entitled to have the provisional affiliation of the College confirmed.

(e) To issue a writ of mandamus or other appropriate order or direction to direct the University not to insist upon any annual affiliation or continuation of provisional affiliation, for the purpose of admission of students or conduct of the M.B.B.S Course in the petitioner's college.

(f) To issue a writ of mandamus or other appropriate order or direction to direct the 4th respondent to forward all information sought for in Ext. P16, to the petitioner without any further delay.

(g) To issue a writ of mandamus or other appropriate order or direction to direct respondents 2 and 3 to conduct appropriate inspection of the college at the appropriate time of the practical exam of the final year students, even if the University do not co-operate.”

4. The 1st respondent contended that since the MCI has granted recognition, his college is entitled to get affiliation. Further, as per the provisions in Chapter 23 of the First Statutes read with Section 23(1) of the Calicut University Act, the University is bound to grant permanent affiliation and not to follow the system of extending the provisional affiliation granted by it, from time to time. According to the 1st respondent, the inaction of the University was vitiated by mala fides for not falling in line with the policy of the Government, as per which, the Medical Colleges were requested to enter into an agreement with the Government, agreeing to surrender 50% of the seats to the State Government for admitting candidates from the list published by the Commissioner for Entrance Examinations.

5. The Calicut University/appellant filed a detailed counter affidavit, resisting the prayers in the writ petition. It challenged the locus standi of the 1st respondent/writ petitioner, who is stated to be the Director of the Medical College, to maintain the writ petition. Apart from the said technical contention, the University contested the matter on merits also. The allegations of mala fide action were emphatically denied. Further, it was pointed out that as per the rules and norms of the University and the Government, admissions can be made only based on the ranking of the candidates in the entrance test conducted by the Commissioner for Entrance Examinations. But, in the case on hand, for the academic year 2006–2007 onwards, the management has adopted a new mode of admission, wherein marks of the entrance examination and marks of the qualifying examination are stated to be taken together. By that process, even ineligible persons were admitted during the academic year 2007–2008. This is evident from Ext. R1(c) letter addressed by the MCI on 25-9-2008, asking the 1st respondent's college to remove from the rolls 18 of its students, who did not have the basic qualification for admission. Since the admissions were made illegally, the college has violated the conditions of provisional affiliation contained in Exts. P1 to P4. So, the 1st respondent's claim for renewal of affiliation for the subsequent years is unsustainable. It was also submitted that even in the face of the University Statutes, prohibiting admission of students without affiliation, the admissions were made illegally for the last two academic years. So, the University prayed for dismissal of the writ petition.

6. The 1st respondent filed a reply affidavit, dealing with the averments in the counted affidavit of the University and also reiterating his contentions. Along with his reply affidavit, the 1st respondent produced Ext. P21 communication addressed by the Registrar of the University to the Secretary of the Medical Counsil of India, stating that the said respondent's college is disqualified to get continued approval from the MCI.

7. The learned Single Judge, after hearing both sides, allowed the writ petition along with another writ petition, by a common judgment dated 3-11-2008. The learned Judge declared that the 1st respondent's institution continued to have provisional affiliation for the years 2007–2008 and 2008–09. The Government of India and the MCI were directed to act upon the above declaration. The relevant portion of the judgment of the learned Single Judge reads as follows:—

“24. 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 Sciences should be deemed to have provisional affiliation for conducting MBBS courses, for the years 2007–2008 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 orders for the aforementioned two years.

iii) The above mentioned declaration is without prejudice to the right of the University to exercise its powers under clauses 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 intimation 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 recognizing 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 simultaneously 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.”

8. Feeling aggrieved by the judgment of the learned Single Judge, this Writ Appeal is filed by the University, mainly, raising the following grounds: The University Act or the Statutes framed thereunder do not provide that if the application for affiliation of an educational institution is not processed within a time-frame, it shall be taken that the application is allowed. There is no provision for deemed grant of affiliation. In the absence of any such provision, the declaration made by the learned Single Judge that the institution shall be deemed to have been affiliated to the University for the academic years 2007–08 and 2008–09, is plainly unsustainable. In fact, the above declaration made is contrary to the finding of the learned Judge himself in the earlier part of the judgment. The learned Single Judge overlooked the fact that the educational institution made admissions to the course in disregard of the provisions concerning admission, contained in the University Statutes. Observance of those conditions was one of the conditions for grant of affiliation There is express prohibition against admitting students to a course without obtaining affiliation for the same. For both the aforementioned academic years, the college made admissions in gross disregard of the aforementioned mandatory provision. Going by the time-frame contained in the Statute concerning submission of the application for affiliation, its consideration, etc., applications were submitted, for both the years, far beyond the time limit prescribed for the same. Further, the 1st respondent's college got approval from the Government of India for continued affiliation only in the beginning of the academic year. In view of the above facts, the college concerned was not entitled to get its affiliation renewed or extended. Therefore, the declaration made by the learned Single Judge is unsustainable in law. In both the academic years concerned, students were admitted, employing a new formula for selection. The same was in violation of the conditions of affiliation. The above important aspect was also overlooked by the learned Single Judge in the judgment under appeal. Therefore, the Writ Appeal may be allowed and the Writ Petition may be dismissed, it is prayed.

9. We heard the learned counsel on both sides. The learned standing counsel Mr. P.G Sasidharan, who appeared for the appellant, took us through the various provisions in Chapter 23 of the First Statutes of the University of Calicut. Statute 1 of the said Chapter provides that the college should have submitted its application for affiliation for the academic year 2007–08, at least by 31-10-2006. Statute 6 provides that the Syndicate of the University should consider the application at least by 31-3-2007. Statute 7 enables the Syndicate of the University to decide not to proceed with the application, if it is satisfied, inter alia, that the college has failed to observe the conditions of affiliation laid down for the previous year. Statute 9 deals with the grant of affiliation on being satisfied that the stipulations therein are satisfied. Clause (b) of Statute 9 would show that the grant of affiliation is not automatic, but only based on the reports of inspection made by the Commission or Commissions appointed by the University. Only upon being satisfied that all the conditions prescribed by the University are fulfilled, permission shall be given for commencement of the course of terms of clause (c) of Statute 9. Other conditions provided under Statute 9 includes an unconditional undertaking from the part of the Educational Agency/Management to the University to carryout faithfully, the provisions of the University Act, Statutes, from time to time. Statute 12 deals with the grant of conditional affiliation. As per that statute, provisional affiliation can be granted for a specified period, subject to fulfilling certain conditions. Statute 16 grants the privilege of presenting students for the examination, held by the University, to an affiliated college. Statute 9(c) read with Statute 19(c) prohibits admission of students without affiliation. Referring to the above provisions, the learned counsel for the appellant/University submitted that the management in the present case has failed to follow the rules governing admission, prescribed by the University. The management has devised its own method of admission and therefore, the applications for affiliation for the aforementioned academic years were liable to be rejected. In the face of the above facts, the grant of affiliation by the learned Single Judge was unjustified. The learned counsel for the appellant relied on the decision of the Division Bench of this Court in Rural Education & Society Trust v. University of Calicut, 2007 (2) KLT 609] and submitted that every affiliated college is bound to abide by the Statutes of the University also, apart from following the regulations issued by All India bodies like M.C.I, A.I.C.T.E, N.C.T.E, etc. The said decisions reiterates the principles that in anticipation of affiliation, students cannot be admitted.

10. The learned senior counsel Mr. Kurian George Kannamthanam, appearing for the 1st respondent, on the other hand, fully supported the directions issued by the learned Single Judge. Referring to Exts. P1 to P3, it is pointed out that in the relevant years, affiliation was granted after the advancement of the academic years and in the case of Ext. P4, affiliation was granted after the lapse of the academic year. The University was never following the stipulation that it should consider the application for affiliation at least by 31 st March of the previous academic year. This is the case of all professional colleges, including Medical Colleges. The learned senior counsel pointed out that Ext. P9 circular dated 22.2.2008 issued by the University of Calicut, calls upon the colleges to apply for affiliation for the academic year 2008–09, even when they have not applied for affiliation upto 2007–08. So, according to the learned senior counsel, the said circular would show that the University was respecting the time frame in the Statutes in Chapter 23 more in violation than in compliance and it is being pressed into service only against the 1st respondent's college. In view of the above factual position, the insistence of the University that the college should have admitted students only after getting provisional affiliation for every subsequent academic year is arbitrary and unreasonable. The same was never insisted in the case of other colleges, it is submitted.

11. Dealing with the main objection of the appellant concerning the method of admission of students, the learned senior counsel for the 1st respondent submitted that during the academic year 2007–08, no rules of the University governing admission were in force. So the management followed a fair procedure. The said submission is further amplified by pointing out that the regulations of the MCI and the decision of the University incorporating the regulations of the MCI etc, stood repealed or abrogated by Section 3 of Act 17/2004. The said Act was challenged before the Apex Court and the Apex Court passed an interim order, inter alia, providing for admission of students, which was at variance with the one that was provided in Section 3 of Act 17/2004. Later, Act 19 of 2006 was enacted by the State Legislature, repealing Act 17/2004. Section 3 of the Act 19/2006 provided a fresh method of admission. The said Section was struck down by this Court in Lisie Medical & Educational Institutions v. State of Kerala (2007 (1) KLT 409). So, the regulations, if any, framed by the University, which governed the filed, were no longer in force, it is submitted. The Management, for the above two academic years, followed the procedure which provided for reckoning the marks of four subjects, relevant for the course, of the qualifying examination and also the marks of the entrance examination secured by the candidate concerned. The rank list was prepared by taking 50% of the marks scored in the entrance examination and 50% of the marks secured for the relevant subjects of the Plus Two course. Students were admitted as per the list prepared, following the above procedure. Some persons who did not secure 50% marks in the entrance examination also were included in the rank list, because of their high academic marks. This happened only in the academic year. Thereupon, the MCI issued Ext. R1(c) notice, which was challenged by the 1st respondent before the Apex Court and as per the interim order passed by the Apex Court, 18 students named in Ext. R1(c) are continuing the course and they have taken the examination also. The said mistake was rectified while making admissions for the academic year 2008–09. The applications of the candidates who secured 50% marks in the entrance examination alone were entertained for 2008–09. The rank list was prepared by adding 50% of the marks obtained by the candidates in the entrance examination to 50% of their academic marks in the relevant subjects of Plus Two/equivalent examination. The above procedure followed in the year 2007–08 was upheld by the Division Bench of this Court in Kerala Self Financing Engineering College Managements Association v. Admission Supervisory Committee for Professional Colleges (2007 (3) KLT 136). The same method was followed for the academic year 2008–09 and it was upheld by a learned Single Judge of this Court in Kerala Christian Professional College Management Federation v. Admission Supervisory Committee for Professional Colleges (2008 (4) KHC 284). So, the method of admission, which is very seriously objected to by the appellant, has the approval of this Court, it is submitted. The learned senior counsel further submitted that the 1st batch of M.B.B.S students of the 1st respondent's college has already taken their final semester examination in November, 2008. At the time of conduct of their last semester's practical examination in January, 2009, the inspection team of the MCI visited the college. In view of the above facts of the case, the learned senior counsel for the 1st respondent submitted that the objections taken by the University are flimsy and not of any substance. The above objections are seriously pressed only against the 1st respondent's college and another college, which was the writ petitioner in the connected case. In the case of any other college under the jurisdiction of the Calicut University, the said University is not taking such a stand. So, the learned Single Judge, having regard to the special facts of the case, was fully justified in making the declaration and issuing the consequential orders, it is submitted.

12. We considered the rival submissions made at the Bar. We have gone through the pleadings and the documents produced. The main grievance raised by the appellant against the judgment of the learned Single Judge relates to the declaration granted by the learned Judge that the 1st respondent's college shall be deemed to have been affiliated to the Calicut University for the academic year 2007–08 and 2008–09. The learned standing counsel for the appellant University contended that the only direction that could have been issued from this Court was to direct the University to consider the applications filed by the 1st respondent's college for the respective years. The learned Judge, in the earlier part of the judgment, held that there is no provision for deemed affiliation under the Calicut University Act and the Statutes; but, while granting the reliefs, such a declaration was made, submitted the learned standing counsel for the University.

13. The learned standing counsel is correct, when he submits that normally, this Court should have issued only a direction in the nature of mandamus to the University to consider the application for affiliation of the 1st respondent's college for the aforementioned academic years. But, now, it is well-settled that in appropriate cases, the writ court can pass an order which the statutory authority would have passed, had it properly exercised the power vested in it See the decision of the Apex Court in The Comptroller v. K.S Jagannathan ((1986) 2 SCC 679 : AIR 1987 SC 537). In the said decision the Apex Court held as follows:

“20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion”.

14. In view of the above legal position, if this Court is satisfied that the University Ought to have granted affiliation to the 1st respondent's college, it can ask the University to grant affiliation, instead of asking the University to consider the application for affiliation. If such an order is passed, that will definitely be within the four comers of the powers of this Court under Article 226 of the Constitution of India. Declaratory relief is also part of prerogative remedies, which is employed to deal with ultra vires actions of the statutory authorities. The complaint of the University is more against the form than about the substance. If the inaction of the University was ultra vires and unjustified and the 1st respondent was entitled to get affiliation, this Court could pass appropriate orders, as mentioned earlier, ordering to grant affiliation. Therefore, we fell that the objection taken by the University against the form of the order is only technical.

15. Now, we will consider the substantive contention of the University concerning the renewal/extension of the affiliation for the academic year 2007–08 and 2008–09. Though there is no order or proceedings of the University, giving the exact reasons for its inaction to consider the applications and grant affiliation, the learned standing counsel for the University submitted that the 1st respondent's college has made admissions of students for the aforementioned years, following a procedure contrary to law. According to him, the new method devised by the college for admitting students is contrary to the regulations framed by the University. We notice that the right to run a Self Financing College is now held to be a fundamental right under Article 19(1)(g) of the Constitution of India. So, in the absence of any valid regulations made by the State, MCI or the University, the management can devise any reasonable method for admitting students, having due regard to the inter se merit of the applicants. Education being a subject in the concurrent list, the Parliament or the State Legislature can, through any valid legislation, regulate the powers of the management in the matter of admission of students. Similarly, the affiliating University also can, by framing valid Statutes/Regulations, make provision for a fair method of selection of students for admission.

16. The learned standing counsel for the University, mainly, relied on the violation f Graduate Medical Education Regulations, 1997, framed by the MCI on 4-3-1997, which were adopted by the Senate of the University of Calicut at its meeting held on 26-9-1998. The said Regulations provide that for general merit candidates, they should have obtained not less that 50% marks in English and 50% marks in Physics, Chemistry and Biology taken together. Admissions have to be made on the basis of a competitive entrance examination. It is the contention of the University that even though those Regulations are no longer followed by the Medical Council of India, because of subsequent pronouncements of the Apex Court, since those Regulations were adopted as its Regulations by the University, even if the MCI repeals them, those Regulations will survive as the Regulations of the University. In the absence of any challenge to those Regulations, admissions should be made by the Medical Colleges in accordance with them it is submitted.

17. The learned senior counsel for the 1st respondent/writ petitioner on the other land, submitted that the admissions in the State of Kerala, to the professional colleges including Medical Colleges, were governed by Section 3 of the Kerala Self Financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act, 2004 (Act 17/2004). According to the said provision, notwithstanding anything contained in any other law, the method under Section 3 for admission of students was to prevail. The said provision was challenged before the Apex Court and the Apex Court, by an interim order, provided for a different form of admission, otherwise than the one provided under Section 3. Later, Section 3 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 (Act 19/2006) provided for a different form of selection of students for admission in professional colleges. Now, the said Section has been struck down by this Court in Lisie Medical & Educational Institutions v. State of Kerala (supra). So, according to the learned senior counsel for the 1st respondent, the Regulations of the University were substituted by Act 17/2004, which in turn was repealed by Act 19/2006. In view of the above position, the Regulations adopted by the University in 1998 are no longer enforceable, it is submitted.

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

“3. Procedure for admission into self financing professional colleges:— (1) Notwithstanding anything contained in any law for the time being in force or in any judgment decree or order of any court or any other authority or in any agreement, the admission of students into a self financing professional college shall be made on the basis of merit as provided in sub-sections (2) to (6).”

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

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

20. When the Regulations of the University were substituted by Act 17/2004, which in turn was repealed by Act 19/2006, the striking down of the relevant provisions of Act 19/2006 will not resurrect the Regulations of the University. Further, except making a general statement that the selection and admission shall be made only on the basis of the Rules and Regulations of the University, Government etc., nothing was specifically stated in Ext. P4. The University has also never alerted the 1st respondent's college, pointing out the method of selection it should follow, as a condition for continuance of the affiliation. Further, we notice that the method followed by the 1st respondent's college for admission has, now, the approval of this Court also. The Supervisory Committee headed by Justice P.A Mohammed took actions against the Self Financing Colleges, which followed similar methods for admission of students. While dealing with those matters, this Court, in effect, approved the method of admission based on the marks secured in the entrance examination as well as the marks secured in the relevant subjects of the qualifying examination. Though the learned counsel for the University would point out that the University was not a party to those decisions, we notice that the statutory under Act 19/2006, which is to supervise the admissions, was a party to those proceedings. In the result, we notice that the main objection taken against the method of admission followed by the 1st respondent's college cannot be sustained in the absence of any valid rules governing the field.

21. Another objection taken is regarding the admission of students made before obtaining affiliation. Reliapce is also placed on the decision of this Court in Rural Education & Social Trust v. University of Calicut (supra). But, in this case, we notice that affiliation for various years was always granted belatedly and the University was not enforcing the time schedule with strictness, going by the orders of affiliation produced in this case. Of course, when a college is going to start functioning for the first time, admission of students without affiliation cannot be tolerated. In this case, the college had already obtained initial provisional affiliation and the same remained in force for the first four years. The dispute relates to the admission of students in the 5th and 6th years after the establishment of the college. Going by the delay in the grant of affiliation for the previous years, the stand of the University that the admissions in the 5th and 6th years should have been made only after getting affiliation, does not appeal to reason. In this context, we notice the contention of the learned senior counsel for the 1st respondent that only in the case of the said respondent's college, this technical contention is raised. This will be evident from Ext. P9 circular issued by the University. The said communication reads as follows:

“Principals of all affiliated colleges are hereby directed to submit a copy of the provisional affiliation ordei/Continuation of Provisional affiliation order/Continuation of Provisional Affiliation order of the concerned year/permanent affiliation order as the case may be, along the applications for examinations from 2008 March examination onwards. Any failure in this regard may lead to rejection of such applications.

Moreover, application for Continuation of Provisional Affiliation to the courses should be submitted at the beginning of every academic year from 2008–09. Colleges which have not applied for Continuation of Provisional Affiliation up to 2007–2008 should apply for the same forthwith.”

(Emphasis supplied)

22. In the light of the above communication, we find it difficult to accept the high sounding claim of the University that the 1st respondent's college should have admitted students in the 5th/6th year only after getting provisional affiliation in advance.

23. In this case, we notice, that the learned Single Judge has ordered to grant affiliation without prejudice to the powers of the University under Statute 14 of Chapter 23 ofthe Calicut University First Statues, 1977. The said provision reads as follows:

“14. Withdrawal or suspension of affiliation:— The Syndicate shall have the power at any time after due enquiry to withdraw or suspend for a definite period the affiliation granted to a college, provided that before taking such action the Syndicate shall inform the management of the College concerned of the findings after the enquiry and shall allow it an opportunity of making such representations as it may deem fit and shall record its opinion on the representation os made. The report of the enquiry, the representation made by the Management, if any, and the decision of the Syndicate thereon shall be placed before the Senate”.

24. So, 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. Going by the decisions of the Apex Court in similar cases, when the MCI recommends for approval of the college to the Union of India, after inspecting the facilities provided therein, the University will, normally, grant affiliation, subject to satisfying its Statutes governing affiliation. In this case, we have already noted that the objections taken by the University against the extension of affiliation, except the one relating to irregular admissions covered by Ext. R1(a) communication of the MCI, are untenable. Since the matter is pending before the Apex Court, we refrain from expressing any opinion in the matter. If ultimately, the decision of the Hon'ble Supreme Court goes against the College, the University can take action against it, under the above quoted Statute 14, in view of the express clarification contained in the judgment under appeal on this point. In the result, we find no reason to interfere with the directions issued by the learned Single Judge. The preliminary objection taken by the university that the 1st respondent was not competent to maintain the writ petition is only technical and without substance. We are not impressed by that contention.

25. But, we notice that the University has got a complaint that the 1st respondent's college is not co-operating with it for conducting the inspection. We feel unhappy with the way the Principal of the College replied by Ext. P7 to Ext. P6 letter of the University. The relevant portion of Ext. P6 read as follows:

“With reference to the above, I am to request you to forward the procedure of selection and admission of students, fee levied and reservation policy adopted in the admission for i MBBS course in your college for 2007–08 urgently.”

26. The answer in Ext. P7 is quoted below for convenient reference:

“This is with reference to your letter cited above. The details asked for has nothing to do with the continuation of affiliation the College.

Yet we are submitting herewith the details asked for. All admissions to our college were done through a centralized process of admission procedure by the Association. The procedure for admission and the fees collected were as notified the prospectus published by the Kerala Private Medical College Management Association.

A copy of the prospectus issued by the Association is enclosed herewith for your easy reference.”

27. Statutes 7, 8 and 9 of Chapter 23 of the Calicut university First Statutes, 1977 confer ample power on the University to inspect the college seeking affiliation. The college is bound to furnish any information called for also. How the students are admitted in a college is a very relevant information, which the university is entitled to know, when it is considering the application for affiliation. The college must conduct its affairs transparently, especially, in the matter of admission of students. The University must be given all facilities for inspection and all details called for by it should be promptly furnished. Clause (f) of Statute 9 of Chapter 23 reads as follows

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

28. In view of the above provision, the Management/Educational Agency as well as the Principal of the college has a duty to obey the directions issued by the University form time to time, subject to the provisions of the Act, Statutes, Ordinances or the Regulations. In certain cases, the colleges may be run by very eminent persons or organizations. Still, they are acting only as educational agencies. As such, they are subordinate to the various authorities of the University. This, we are constrained to say, seeing the tone and tenor of Ext. P7. Subject to the above observations, the Writ Appeal is dismissed.

W.A No. 249/2009:

29. The facts of this case are identical to the facts in W.A No. 241/2009. This appeal is also directed against the common judgment of the learned Single Judge, issuing certain common directions. Therefore, it is ordered that the judgment in W.A No. 241/2009 will govern this appeal also. Accordingly, W.A No. 249/2009 is dismissed.