The petitioner is aggrieved with Ext.P6 communication, which refused permission for starting M.Pharm Degree Course. The petitioner, admittedly, has been carrying on pharmacy courses, at the graduate level. For the year 2014 - 2015, the petitioner sought for a new course at the post graduate level. The same was declined by Ext.P6. The reasons for declining the consent of affiliation, for the new course, was that there was lack of adequate equipments for the conduct of M.Pharm Course and that for the last two years, the petitioner's college, having not acquired marks above the University average. One another reason stated, of there being no NOC, is no more relevant, going by the precedent of St.Joseph Hospital Trust v. Kerala University of Health Sciences [2012 (4) KLT 444]. 2. The stipulation of the University average is as per Ext.P9, which stipulates in Paragraph No.7 clause (2) as follows: “The final Year result of the previous batch is 60% or above; or above the University average.”
3. The contention raised by the learned Senior Counsel is that, the Kerala University of Health Sciences was constituted by a Statute of 2010 and all colleges offering medical and allied courses were brought under the said University. The petitioner, admittedly, was a college, functioning under the Kannur University and had consistently good turnout in the examinations with 100% results as far as the final year examinations were concerned. The petitioner's college has now been declined the new course, only because, the petitioner's college had not acquired the percentage, above the University average, for the first and second years. Admittedly, there is no final year examination conducted by the present University and the University relying on the above provision, decided to take the average of the examinations conducted by the Health University itself in the various colleges, which were only of the 1st and 2nd years.
4. The learned Senior counsel would take me through Section 25 of The Kerala University of Health Sciences Act, 2010; specifically Clause (xix), which indicates that the grant of affiliation for colleges or institutions should be in accordance with the provisions of the Statues, Ordinances and Regulations. Section 51(4) also prescribe that, the Rules and procedure for affiliation of a college, to the University, shall be as prescribed by the Statutes. Section 40(xi) deals with the conditions of affiliation and Section 46 brings in a mandate that a gazette publication is necessary for the Statutes, Ordinances and Regulations to be brought into force.
5. Going by the above provisions, the learned Senior Counsel would urge that, the present regulation is not one brought in as per the Act, since, the same is not a part of the Statute and there is no publication as such in the gazette. The learned Senior Counsel would also refer to Section 12(8) wherein, the Vice-Chancellor has been granted specific powers for making regulations subject only to the condition that the same shall be placed before the Body or authority enjoined upon to consider such regulations, as early as possible. The present regulations cannot be said to be one passed by the Vice-Chancellor, since the Academic Council's proposal was given a stamp of approval by the Vice- Chancellor. Hence, the emergency provision cannot be extended to sustain the instant regulation, is the contention.
6. In the nature of the orders to be passed; this Court is of the opinion that the issue as to the statutory force of the regulation, need not be looked into. Even as per the regulations, approved by the Academic Council, what is required for affiliation of a new course is 60% or above in the final result of the previous batch or above the University average. The present situation occurred since, even after the constitution of the Kerala University of Health Sciences, the courses which commenced earlier in the colleges continued under the University to which the college was earlier affiliated. Hence, from 2010, the first batch of admission alone was under the Kerala University of Health Sciences, while the earlier batches in the higher terms, were continued with the Kannur University.
7. According to the regulation brought in by the Academic Council, the final year results of the University had to be taken into account, to determine the percentage and determine compliance with the regulation. It is the submission of the University that, the University having not conducted a final year examination, decided to take the average of the first and second year examinations, as of now. It is to be noticed that, though, the same seems to be a reasonable exercise, the specific recommendation of the Academic Council does not sanction the same. The recommendation made by the Academic Council is only with respect to the final year result of the previous batch.
8. If, in a particular college, there was no final year at all, then probably, the said exercise could have been resorted to. In the petitioner's college, admittedly, there was a final year course conducted for the last four years but, under a different University, the Kannur University. Going by the letter and spirit of the regulations, the University would necessarily have to look at the pass percentage of the previous batch, in the final year result of the college, without looking at the University, which conducted the said examination.
9. In such circumstances, the rejection made in Ext.P6, for reason of the petitioner's University having not acquired the University average, for the last two years in the first and second year examinations, cannot be a reason to deny the course to the petitioner. As was noticed earlier, the aforesaid decision of the Division Bench, would also make it clear that, the production of NOC from the Government of Kerala is not a necessary requirement for granting affiliation. The petitioner contends that the defect with respect to lack of adequate equipments also remains cured.
10. Having held so, this Court is faced with the question of relief that could be granted in the case. The learned Standing Counsel appearing for the University would submit that, the grant of affiliation for the new course in the present year cannot be considered, since the date of commencement of the course is long over. In such circumstances, this Court would not issue a writ of mandamus, since that would be a futile exercise for the simple reason that the course cannot be commenced for the current year, as the time for admissions has elapsed. However, the interpretation placed on the regulations shall be taken into account by the respondent University, when the question of affiliation is raised in the next academic year, however, subject to any change in regulations or in the fact situation.
11. In such circumstance, Ext.P6 as such is set aside, for the sole reason that the said finding shall not govern the matter while considering the same in the next year.
The writ petition is disposed, of with the above directions.
AMV/12/12/ Sd/-
K.VINOD CHANDRAN, JUDGE