Point of Law: Medical college - Affiliation - any jurisdictional error in exercising the discretion or any other patent illegality in the judgment of the learned single Judge need alone be the consideration in an intra court appeal filed under Section 5 of the Kerala High Court Act -out of the consent of affiliations sought for 9 postgraduate courses, 5 were granted and seats were enhanced within the time period consequent to a direction issued by a learned single Judge of this Court. But, the appellant never initiates any action within the time period prescribed under law in regard to the consent of affiliations not granted

JUDGMENT :

SHAJI P. CHALY, J.

The captioned writ appeal is preferred by the petitioner in W.P. (C) No. 27034 of 2020 challenging the judgment dated 15.12.2020, whereby the learned single Judge declined the following reliefs sought for by the appellant in the writ petition:

1. Call for the records relating to Ext.P8 and peruse the same.

2. Issue a writ of certiorari and quash Ext.P8.

3. Issue a writ of mandamus directing the 4th respondent University to grant consent of affiliation with or without inspection in such manner that the same reaches the 3rd respondent on or before 15.12.2020.

4. Issue a writ of mandamus directing the 3rd respondent to grant such further time that this Hon’ble Court may deem fit for production of consent of affiliation in the facts and circumstances of the case.

5. Issue a writ of mandamus directing the 3rd respondent to consider the applications for enhancement/starting of PG courses for the year 2021-2022 now pending and listed in Ext.P10 representation without insisting on consent of affiliation.

2. Brief material facts for the disposal of the appeal are as follows:

The appellant is a registered Charitable Educational Trust established in Kozhikode in the year 2003 and has set up the Malabar Medical College Hospital and Research Centre, apart from other professional colleges administering dental, nursing and para medical courses in the district. The appellant has been running a 150 seats Medical College since 2010 and it is submitted that a 720 beded hospital having all speciality and super speciality departments are attached to the medical college. The appellant has filed the writ petition aggrieved by the decision of the National Medical Commission, which has replaced the Medical Council of India-third respondent, directing the appellant to submit the consent of affiliation (COA) from the Kerala University of Health and Allied Sciences, which is regulating and controlling the medical college and other allied institutions in the State of Kerala.

3. According to the appellant, the National Medical Commission has overlooked the fact that the University itself has written to it, its inability to carry out the inspections regarding the issuance of consent of affiliation for some of the post graduate courses applied for by the appellant due to the pandemic Covid-19. It is the case of the appellant that the applications were submitted by the appellant for starting of seats in various post graduate courses at Malabar Medical College under Section 10A of the Indian Medical Council Act, 1956 (‘Act, 1956' for short) for the academic year 2021-2022 on the basis of the directions contained in Ext. P1 judgment in W.P.(C) No. 14835 of 2019 dated 04.03.2020, which was filed by the appellant when the Kerala University of Health Sciences put a cap to the number of seats as two as against more number of seats applied by the appellant.

4. In the judgment, the learned single Judge directed the University to take a decision on the enhanced number of seats sought for and the National Medical Commission was directed to consider the application of the appellant as a continuing one, rather than a fresh application for enhancement. It is submitted by the appellant that the requisite fee of Rs.4.72 lakhs for each course was paid by the appellant and therefore, the stand adopted by the Medical Commission of India that the appellant has not produced the consent of affiliation from the University cannot be sustained under law.

5. Fact remains, the appellant has applied for 9 post graduate medical courses. However, the Kerala University of Health Sciences has only granted consent of affiliation for 5 courses and that too, limiting the seats to two; but as per the communications dated 17.08.2020, 17.08.2020, 27.08.2020, 27.08.2020 and 27.08.2020 as is evident from Ext. P4 series in regard to MS Orthopaedics, MD Paediatrics, MD Dermatology Venereology and Leprosy, MD General Medicine and MD Anesthesiology, the seats were enhanced. In fact