Arathy P. Jose v. Mahatma Gandhi University and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 22ND DAY OF OCTOBER 2013/30TH ASWINA, 1935 WP(C).No. 29979 of 2012 (V) ---------------------------- PETITIONER(S): -------------------------- ARATHY P.JOSE, AGED 25 YEARS, D/O. JOSE DEGAUL PIUS RESIDING AT BUILDING NO. 198 MUSSAFAH ME-10 POST BOX NO. 40031 ABU DHABI UNITED ARAB EMIRATES REPRESENTED BY POWER OF ATTORNEY HOLDER ROY THOMAS, AGED 43 YEARS, S/O. THOMAS JOSEPH PANCHAKSHARY ETTUMANOOR, KOTTAYAM DIST-686631. BY ADVS.SRI.FRINSO MATHEW SRI.C.I.RIYAD SMT.RAJESWARI ANIL RESPONDENT(S): ---------------------------- 1. THE MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS.P.O. KOTTAYAM-686560 REPRESENTED BY ITS REGISTRAR. 2. CONTROLLER OF EXAMINATIONS, MAHATMA GANDHI UNIVERESITY, PRIYADARSHINI HILLS.P.O. KOTTAYAM-686560. 3. VICE CHANCELLOR AND CHAIRMAN OF THE SYNDICATE AND ACADEMIC COUNCIL, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS.P.O. KOTTAYAM-686560 BY SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY BY SRI.VIVEK VARGHESE P.J., SC, M.G. UNIVERSITY BY DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29979 of 2012 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 A TRUE COPY OF THE POWER OF ATTORNEY. EXT.P2 A TRUE COPY OF THE B.COM (OFF CAMPUS) RESULT NOTIFICATION DATED ON 19-10-2011. EXT.P3 A TRUE COPY OF THE MARK LIST WITH REG. NO. 6951 DATED ON 19-10-2011 FOR THE FINAL YEAR B.COM SUPPLIMENTARY EXAMINATION HELD ON APRIL 2011. EXT.P4 A TRUE COPY OF THE FILLED APPLICATION FOR PROVISIONAL CERTIFICATE DATED ON 21-12-2011. EXT.P5 A TRUE COPY OF THE PROVISIONAL CERTIFICATE ISSUED ON 7-1-2012. EXT.P6 A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER ON 21-6-2012 FOR ISSUE THE MARK LIST OF THE EXAMINATION HELD ON APRIL 2010. EXT.P7 A TRUE COPY OF THE DUPLICATE MARK LIST WITH REG. NO. 31363 DATED ON 28-10-2010 AND ISSUED ON 15-10-2012 FOR THE EXAMINATION HELD ON APRIL 2010. EXT.P8 A TRUE COPY OF THE CASH RECEIVED RECEIPT DATED ON 18-10-2012 FOR ISSUE THE BCOM DEGREE CERTIFICATE. EXT.P9 A TRUE COPY OF THE REPRESENTATION ON 27-11-2012 MADE BY THE PETITIONER FOR ISSUE THE DEGREE CERTIFICATE. EXT.P10 A TRUE COPY OF THE DEGREE CERTIFICATE DECECT MEMO DATED ON 28-11-2012 EXT.P11 A TRUE COPY OF THE 1ST YEAR B.COM DEGREE EXAMINATION MARK LIST WITH REG. NO. 31363 DATED ON 29-1-2009. EXT.P12 A TRUE COPY OF THE II-ND YEAR B.COM DEGREE EXMINATION MARK LIST AND 1ST YEAR IMPROVEMENT MARK LIST WITH REG. NO. 31363 DATED ON 20-2-2010. //true copy// P.A.To Judge ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - W.P.(C).No. 29979 of 2012 - - - - - - - - - - - Dated this the 22[nd] day of October, 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The petitioner, on the basis of a provisional certificate issued produced as Ext.P5, seeks issuance of degree certificate after setting aside Ext.P10 memo issued by the University; pointing out certain defects in her claim of having obtained a B.Com Degree. 2. The brief facts of the case are that the petitioner was a candidate from the respondent University's International Off Campus Centre at Abudabi for the B.Com Degree course, for the year 2007-10. It is seen that for the 2[nd] year, the petitioner appeared for the examinations and failed to get the minimum pass marks required in Paper-VI 'Marketing Management'. As is evidenced by Ext.P12, she obtained only 30 marks. It is submitted that she sat for the supplementary examination which was held in October 2010. But it is contended that no mark lists were issued to her. After the present dispute arose, it is the petitioner's claim that she applied for a duplicate mark **WP(C).29979/12** 2 list and she was issued with Ext.P7, which again shows that for the paper 'Marketing Management' she obtained only 23 marks, thus again failing in the same. 3. The petitioner also did not qualify in the final year examination conducted in 2010 and hence applied for the supplementary examination in 2011. She was shown as passed in Ext.P2 notification issued by the University wherein her role No.6951 was shown as having passed in the supplementary examination conducted at the International Study Centre at Abu Dhabi. The marks she obtained in the final year B.Com Degree examination are also evidenced in Ext.P3. Obviously she had passed all the papers in the final year as is evidenced by Ext.P3 and that was what was declared in Ext.P2. 4. The petitioner applied for a provisional Degree certificate by Ext.P4. This was the point at which the University committed a mistake by issuing Ext.P5 provisional certificate. It is the contention of the University that the same was issued without proper verification since in May 2009 in the **WP(C).29979/12** 3 supplementary examination the petitioner appeared; she obtained only 30 marks out of 40 as is evidenced by Ext.P12. The Pass Board had permitted a moderation in the said paper in May, 2009 to the extent of five marks required for a pass. By an oversight, 10 marks was seen given to the petitioner and she was treated as passed and hence the issuance of the provisional certificate, is the contention of the University. It is to be noticed that even going by the petitioner's averments, it is admitted that she failed in May 2009 examinations as is revealed by Ext.P12. 5. The petitioner contends that she had not received the 2[nd] year mark list in the supplementary examination conducted in 2010, the same cannot be assumed, since, without the mark list, she could not have applied for a degree certificate. It is the contention of the petitioner that she applied for a duplicate mark list which was issued as per Ext.P7 which again reveals that the petitioner obtained only 23 marks in the paper 'Marketing Management'. The petitioner's attempt was to rely on Ext.P2 notification and obtain a degree certificate. As was **WP(C).29979/12** 4 noticed above, Ext.P2 notification is only with respect to the supplementary final year examinations conducted in April, 2011 in which she had passed in all the subjects. 6. When the application was submitted for issuance of degree certificate, Ext.P10 was issued directing the petitioner to produce all the mark lists. The petitioner purposefully evaded the same pointing out that she had not received the mark list of the 2[nd] year supplementary examination held in 2010. This Court cannot presume that she had not received the mark list especially since it was incumbent upon her to ensure that she had passed in all the examinations in the 2[nd] year. Without the mark list she could not have known whether she passed or failed in the 2[nd] year supplementary examinations held in 2010, since as noticed above Ext.P2 was only in respect to the 3[rd] year supplementary examination held in 2011. There is nothing on record to show that the petitioner was issued with any communication as to her having passed in the 2[nd] year supplementary examination held in 2010. **WP(C).29979/12** 5 7. The learned counsel for the petitioner relies on the judgment of the Supreme Court reported in **Sanatan Gauda v.** **Berhampur University and Others (AIR 1990 SC 1075)** which was followed in **Abhilash v. Mahatma Gandhi University (2012 (2) KLT 926)** . In **Abhilash** (supra) this Court refused to accept the contention of the University that a candidate had not actually passed in the degree examinations after having issued the degree certificate and the candidate having got himself admitted to the Post Graduate course in the same subject in the very same University, which the candidate cleared. The facts in the said decision reveal that there, the candidate was declared as successful in the Under Graduate Degree examinations and was awarded the degree based on which he had obtained admission to the Post Graduate Courses which degree also was awarded by the University. Later on, while seeking admission to a different course, ie., B.Ed, the University refused to grant the same on the contention that the Graduate degree itself was defective for reason of the candidate having not passed the particular examination. It is also pertinent that the said cancellation was after the expiry of **WP(C).29979/12** 6 a long period of time. **Sanatan Gauda** (supra) also was a case in which the Honourable Supreme Court found that the candidate admitted to the LLB Course of the University; even as per the Regulations was qualified with the prescribed marks for eligibility. After having found so it was also held that the University, after admitting the student to the LLB Course, and later permitting him to pursue his studies for two years and even admitting him to the examinations in the said two years; is estopped from raising any objection as to his eligibility since the marks lists were available with the University at the time of admission itself. The facts in the instant case is clearly distinguishable. 8. In the present case, the candidate who had completed the three year course in the years 2007-10, had failed to qualify in the 2[nd] and 3[rd] year examinations. She appeared for the supplementary 2[nd] year examination after the completion of the course in the year 2010 and then later, appeared for the supplementary examination in the final degree examination in the year 2011. It is very evident from the records produced by **WP(C).29979/12** 7 the petitioner herself that she had not cleared the paper 'Marketing Management' in the 2[nd] year examination conducted in 2009 and in the “regular” supplementary examination conducted in 2010. That the petitioner was aware of her failure in one paper in the regular examination of 2009 is clear from Ext.P12. The petitioner's version that she was not issued with the mark list of the 2[nd] year supplementary examination cannot be believed, since without that she could not have applied for the degree certificate. The petitioner also does not have a case that the University informed her about her having passed in the 2[nd] year examination; either regular or supplementary. After passing the 3[rd] year she applied for a provisional degree certificate and she was issued with one; obviously due to a mistake. This Court cannot confer a degree on a student when the student has failed to clear the examinations. Nor can the student claim it as a legal right when admittedly the student has not passed the examinations. The University cannot be tied down by the principle of estoppel on the facts disclosed herein. This Court is of the opinion that no favourable orders can be granted to the petitioner and the petitioner necessarily **WP(C).29979/12** 8 would have to appear for the examination in which she is demonstrated to have failed; for which the University also has no objection. In the above circumstances, the writ petition is found to be devoid of merit and the same is dismissed. No costs. **K.VINOD CHANDRAN, Judge** mrcs