AASA.G.P. GOKULAM v. University of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 8TH DAY OF MARCH 2013/17TH PHALGUNA 1934** **WP(C).No. 17842 of 2005 (Y) ----------------------------** **PETITIONER(S): ---------------** **AASA.G.P. GOKULAM, PALACE ROAD, ATTINGAL.** **BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V.** - **RESPONDENT(S): --------------** **1. THE UNIVERSITY OF KERALA, PALAYAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR.** **2. THE VICE CHANCELLOR, UNIVERSITY OF KERALA, PALAYAM, THIRUVANANTHAPURAM.** **3. THE CONTROLLER OF EXAMINATIONS, UNVIERSITY OF KERALA, PALAYAM, THIRUVANANTHAPURAM.** **4. THE PRINCIPAL, S.N.COLLEGE, CHEMPZHANTHY, THIRUVANANTHAPURAM.** **R1 TO 3 BY ADV. SRI.S.GOPAKUMARAN NAIR, SC KERALA UTY. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. SRI.M.K.CHANDRAMOHAN DAS,SC,KERALA UTY. R4 BY ADV. SRI.A.N.RAJAN BABU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 17842 of 2005 (Y)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : TRUE COPY OF THE BA DEGREE CERTIFICATE DT 5.9.2003 ISSUED BY THE UNIVERSITY TO THE PETITIONER** - **EXT.P2 : TRUE COPY OF THE MARK SHEET DT 31.7.2002 OF THE FINAL YEAR BA DEGREE EXAMINATION** - **EXT.P3 : TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER ISSUED BY THE 4TH RESPONDENT** - **EXT.P4 : TRUE COPY OF ADMIT CARD ISSUED BY THE UNIVERSITY TO THE PETITIONER DURING JANUARY 2003 FOR ATTENDING THE MA HISTORY IST SEMESTER EXAMINATIONS** - **EXT.P5 : TRUE COPY OF THE ADMIT CARD ISSUED BY THE UNIVERSITY TO THE PETITIONER FURING JULY 2003 FOR ATTENDING THE MA HISTORY SECOND SEMESTER EXAMINATIONS** - **EXT.P6 : TRUE COPY OF ADMIT CARD ISSUED BY THE UNIVERSITY TO THE PETITIONER DURING DECEMBER 2003 FOR ATTENDING THE MA HISTORY THIRD SEMESTER EXAMINATIONS** - **EXT.P7 : TRUE COPY OF ADMIT CARD ISSUED BY THE UNIVERSITY TO THE PETITIONER DURING JUNE 2004 FOR ATTENDING MA HISTORY FOURTH SEMESTER EXAMINATIONS.** - **EXT.P8 : TRUE COPY OF THE REPRESENTATION DT 28.9.2004 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT** ## **RESPONDENTS' ANNEXURES:** - **EXT.R1(a) : TRUE COPY OF THE RELEVANT PORTION OF THE PROSPECTUS PRESCRIBING THE MINIMUM ELIGIBILITY FOR ADMISSION TO MA HISTORY COURSE** - **EXT.R1(b) : TRUE COPY OF THE INTIMATION ISSUED TO THE COLLEGE EXT.R1(c) : TRUE COPY OF THE JUDGMENT IN WP(c) NO.15867/2003 EXT.R1(d) : TRUE COPY OF THE LETTER SENT BY THE PRINCIPAL TO THE 3RD RESPONDENT** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **jma** Manjula Chellur, C.J. & K.Vinod Chandran, J. -----------------------------------------W.P(C) No.17842 of 2005 -------------------------------------------Dated this, the 8[th] day of March, 2013 ## J U D G M E N T ## Vinod Chandran,J.: The above writ petition is filed by a student of MA (History) seeking declaration of her results in the examinations she wrote as per Exts. P4 to P7 admit cards issued by the University. The University is before us, in appeal, from an interim order of the learned Single Judge, directing publication of results. Since, the interim order virtually allowed the writ petition we called for and the writ petition itself, by consent of the parties, is heard. 2. The brief facts necessary for the disposal of the above writ petition are that the petitioner was a graduate in history with 41% marks. She secured admission for the Post Graduate Course in History in the 4[th] respondent college which is affiliated to the University of Kerala, the 1[st] respondent. The petitioner's contention was that she was admitted to the course after her certificates were verified by the 4[th] respondent and she has appeared for all the examinations for which she was issued WP(C) No.17842/2005 :2: with admit cards by the first respondent University; evidenced by Exts.P4 to P7. After the completion of the course, it is her contention that the mark list being not issued and she being not conferred with the Post Graduate Degree, she approached the University and she was informed that she could not be conferred with the degree since she did not have the essential qualification for admission to the course, which is 45% at the Graduate level. 3. The petitioner contends that she had in fact, submitted the entire certificates before the 4[th] respondent college and it was for the college as also the University who issued the admit cards to verify the same and inform the petitioner about her disqualification. The petitioner having been admitted to the course and the University having permitted her to write the examinations, the petitioner could not be alleged to have committed any fraud. Since the expenditure and effort in continuing and completing the course was made by her only by reason of the fact of admission to the course as also the examinations; she could not be denied conferment of degree after the completion of the course , is her contention. 4. The first respondent University had filed a detailed WP(C) No.17842/2005 :3: counter affidavit where it is alleged that the University does not scrutinize the application at the initial point of admission to the course when it is under a stream of regular study through an affiliated college. It is the responsibility of the college which grants admission to the students to verify the satisfaction of the essential criteria for admission, with reference to qualification and percentage of marks. On the college submitting applications for issuance of admit cards along with the examination fee, the same is also done as a matter of course, without verification of the eligibility of the student to carry on the course, since it is the duty of the affiliated college to verify such details. However, the mark list for all examinations for each semester would be issued only when the certificate evidencing eligibility for admission to the course is produced before the University; by the college or by the student. 5. It is the specific case of the University that the petitioners mark lists for none of the semester examinations, were published and the mark lists were withheld from the very first semester onwards for the reason of non-submission of the degree certificate. The petitioner was well aware of the fact of WP(C) No.17842/2005 :4: her disqualification, since her mark lists were withheld and she continued to make applications through the college for the subsequent examinations for which also no mark lists were issued. The petitioner kept mum and surreptitiously completed the course and then in the year 2005 approached this Court with the above writ petition pleading innocence and helplessness. The petitioner having not satisfied the primary eligibility for admission to the course, the University seeks to uphold its decision not to issue and confer the post graduate degree. 6. We have heard the learned counsel for the University as also the learned counsel appearing for the 4[th] respondent College. The learned counsel for the petitioner would urge that the petitioner cannot be found fault with, especially since she had been prompt in submitting her certificates and the defect if any, is with the 4[th] respondent College and the first respondent University which did not take proper care while admitting the petitioner to the course and was allowed to continue for the two years, in which time she was also permitted to appear for all the examinations in the four semesters. The learned counsel would also take us through the WP(C) No.17842/2005 :5: decision of the **Krishan v. Kurukshetra University (1976(1) SCC 311)** to contend that in similar situation, the Hon'ble Supreme Court has directed the issuance of the certificate on the ground that once a candidate was allowed to take the examination, rightly or wrongly, then, the candidate cannot be refused admission, subsequently, for any infirmity which should have been looked into, before allowing the candidate permission to appear for the examination. The learned counsel for the respondent University, however, would place reliance on **Maharshi Dayanand University v. Surjeet Kaur (2010(7) SCALE 194)** . 7. We have anxiously considered the submissions made before us with reference to the records, especially since a student who has completed her course and had appeared in all the examinations, is before us with the contention that if she had been denied the admission at the outset, she would have not joined for the course and put herself in jeopardy; wasting two valuable years of her life. Admittedly, the essential eligibility for admission to MA History Course in the first respondent University is a graduation in any of the subjects in the Faculty of WP(C) No.17842/2005 :6: Social Sciences or Faculty of Arts with English language and literature as the main subject, securing not less than 45% marks in Part III Optional subjects, as is evidenced by Ext.R1(a). 8. It is pertinent that the petitioner also does not at any point say that she was unaware of such prescription. Her case is that she had produced her mark list and that evidently showed that she had only 41% marks and hence it was competent for the college or University to have declined admission to her. On the contrary, despite her putting all the cards on the table the 4[th] respondent college and the first respondent University by their levity and indifference in examining the degree certificate, according to her, has eventually resulted in the present circumstance, seriously prejudicing her. We cannot for a moment take it that the petitioner was not aware of such prescription of minimum percentage. It is evident from the counter affidavit that the petitioner who belongs to a reserved category was entitled to relaxation of 2% marks which relaxation also would not make her eligible to get admitted to the PG Course since she had only 41% at the graduate level. WP(C) No.17842/2005 :7: 9. The explanation of the 4[th] respondent college is in so far as the Principal alleges it to be an error in the verification of the mark statement at the time of admission, due to the heavy rush for admissions. The lapse on the part of the Principal though admitted, the 4[th] respondent college by Ext.R1(d) requested the University to “ratify the action and direct your office to publish the results without delay. ”(sic). If at all, we are convinced that the default, is on the part of the college and the University cannot be held responsible for the College having admitted the petitioner to the course. We have noticed the system followed by the University regarding the verification of essential eligibility condition and it is for the affiliated college to have verified the certificates before making admissions to the course. It is also pertinent that the college also would have been aware of the fact that no mark lists were issued in any of the semesters for reason of not having forwarded the degree certificate. The 4[th] respondent college has absolutely no explanation to offer for not having secured the mark list of the petitioner for each of the examinations she appeared in, evidenced by Ext.P4 to P7, since obviously, it was their duty to WP(C) No.17842/2005 :8: send the degree certificate to the University and obtain the mark list of the student. We are persuaded to think that the authorities of the 4[th] respondent college colluded with the petitioner to permit her to continue and complete her course of study. 10. We have also looked at the decisions cited by both sides. **Kurukshetra University's case(supra)** was one in which a Government employee had pursued three years course in LLB, with the University. The petitioner therein having appeared for the annual examination in Part I failed in three subjects and then, sought for permission to appear in part II examinations. An application made for permitting him to appear in the failed subjects in part I was declined and the appellant applied for his Part II examinations and sought for provisional permission to appear subject to his getting permission from his employer to attend the law faculty. Subsequently, after taking the Part II examinations, the petitioner was before court when he was refused the admission for the part III course by reason of his having no permission from his employer. The refusal to grant admission was made on the grounds of the petitioner having no WP(C) No.17842/2005 :9: requisite percentage in LLB Part I and in having not obtained permission from his employer to attend the law course. It was held by the Hon'ble Supreme Court that verification of eligibility to appear for examination should have been done by the University at the initial stage itself as per its ordinance which provided for withdrawal of the candidature by the University before the candidates took the examinations. The learned Judges found that his request for provisional registration could not be relied on by the University to decline its ineligibility after the examination, especially since such provisional admission was sought for and granted only on the ground of non-production of the certificate of permission from the employer to attend the course. That requirement was held to be not one statutorily prescribed. The admission, in the nature of provisional registration sought, in ignorance of his legal rights or under duress cannot bind the maker of the admission, was the finding. With respect to the allegation of fraud having been committed by the petitioner on the University, it was held that the petitioner had never notified the authorities of the University that he was qualified to appear for the part II examination. The contention of WP(C) No.17842/2005 :10: the University was negated, banking on the well settled principle that where a person on whom a fraud is said to be committed, is in a position to discover the truth by his own diligence, there can be no fraud alleged in the teeth of absence of sufficient diligence to verify the facts. It was held to be neither a case of suggestio falsi nor suppressio veri. 11. We will examine the instant case on the ratio decidendi of the above decision. In the instant case, the petitioner was aware of the fact that she had not the essential qualification which was very evident from the prospectus; which was the document based on which the petitioner sought admission. The petitioner was admitted in the management quota and despite her having not satisfied the essential eligibility for admission her examination fees were also forwarded to the University by the management of the 4[th] respondent college. The petitioner appeared in all the 4 semester examinations and had claims of having passed all of them. She has also specified the marks she is supposed to have obtained in each of the first three semesters. But, evidently, no mark list was issued by the University. Any student who was vigilant enough and who was WP(C) No.17842/2005 :11: clothed with the pall of innocence and helplessness claimed by the petitioner, would have enquired at the first instance itself as to why the mark lists were not issued. As noticed above, the petitioner did not move a little finger and it is safe to assume that it was only because she was aware of her disqualification, she bided her time till she concluded the course and then jumped on to the band wagon of litigation, claiming equities. We are definite in our opinion that the facts of the instant case are clearly distinguishable from the Supreme Court decision discussed above. Here is a clear case of suggestio falsi and suppressio veri. 12. The Hon'ble Supreme Court in **K.S Bhoir v. State of Maharashtra [2001 (10) SCC 264]** drew a distinction between adjusting equities under Article 226 and the High Court assuming the role of the Government or the Medical Council of India and cautioned the Courts from waiving the mandatory requirement of law in exercise of its extraordinary power and directing an authority to act contrary to statutory prescriptions. 13. We are further fortified by yet another decision of WP(C) No.17842/2005 :12: the Supreme Court in **Maharshi Dayanand University** relied on by the respondent University. The Hon'ble Supreme Court referred to a number of decisions of the apex Court wherein the above position in **K.S Bhoir** was reiterated. In the said decision, under the garb of a notification granting a further chance to students who had not been able to complete their B Ed courses, the respondent therein applied and appeared for the examinations suppressing the fact that she had been carrying on parallel studies in a Post Graduate course of the same University and since the same was specifically prohibited by rules, the respondent had also opted to continue her P.G study giving up her B Ed course. The facts of the said decision, according to us are more similar with the facts of the instant case. We are of the opinion that the petitioner had employed guile and deceit in pursuing her course without revealing her marks at graduate level to the University, with the sole malafide intention of approaching this court on the ground of equity after the completion of her study. The cloak of innocence; the petitioner, so verily attempts to drape herself with, is but a bald pretense. We cannot, but, deprecate such conduct. WP(C) No.17842/2005 :13: The writ petition is devoid of merit and is liable to be dismissed, however, with no order as to costs. Sd/Manjula Chellur, Chief Justice jma/12.3. Sd/K.Vinod Chandran, Judge. //true copy// P.A to Judge