Dany Siby v. Mahatma Gandhi University & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 26TH DAY OF MARCH 2018 / 5TH CHAITHRA, 1940** **WP(C).No. 10345 of 2018** ## **NAME AND ADDRESS OF THE PETITIONER(S)** **DANY SIBY, S/O. SIBY JOSE, AGED 20 YEARS, BBA, 4TH SEMESTER STUDENT, RAJAGIRI COLLEGE OF SOCIAL SCIENCE(AUTONOMOUS) KALAMASSERY, PIN CODE 682 034, RESIDING AT KOCHUPURAYIL HOUSE, VALLICHIRA P.O, PALA, KOTTAYAM (D.T), PIN CODE 686 574.** **BY ADV.SMT.LIZA P.CHERIAN** ## **NAME AND ADDRESS OF THE RESPONDENT(S):** **1. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS P.O, KOTTAYAM 686 560.** **2. VICE CHANCELLOR,** **MAHATMA GANDHI UNIVERSITY** **PRIYADARSINI HILLS P.O,** **KOTTAYAM 686 560.** **3. EXAMINATION CONTROLLER,** **RAJAGIRI COLLEGE OF SOCIAL SCIENCE, ERNAKULAM- 682 022.** **4. THE PRINCIPAL,** **RAJAGIRI COLLEGE OF SOCIAL SCIENCE RAJAGIRI P.O, KALAMASSERY- 682 022.** **5. THE MANAGER,** **RAJAGIRI COLLEGE OF SOCIAL SCIENCE KALAMASSERY- 682 022.** **R1 TO R3 BY ADV. SRI.ASOK M. CHERIAN, S.C R4 & R5 BY ADV. SRI.TONY GEORGE KANNANTHANAM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **17.04.2018** **WP(C).No. 10345 of 2018 (P)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE MEDICAL CERTIFICATE. EXHIBIT P2 TRUE COPY OF THE LEAVE APPLICATION. EXHIBIT P3 TRUE COPY OF THE CONDONATION APPLICATION.** **RESPONDENT(S)' EXHIBITS :** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 17.04.2018** ## **ANIL K.NARENDRAN, J.** **-----------------------------------------------** W.P.(C)No.10345 of 2018 **-----------------------------------------------** Dated this the 26[th] day of March, 2018 ## **J U D G M E N T** The petitioner, who is the 2[nd] year BBA student of Rajagiri College of Social Science which is an autonomous institution affiliated to M.G.University, is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 4[th] respondent Principal to consider Exts.P1 and P2 medical certificates and to direct the 3[rd] respondent Examination Controller of that institution to issue hall ticket to the petitioner for writing the examination scheduled on 24.3.2018 and 27.3.2018 (wrongly stated as 28.3.2018 in the writ petition). The petitioner has also sought for an order directing the 5[th] respondent Manager of that institution to pay cost and compensation for causing hardship and prejudice to the petitioner. 2. The writ petition was moved as 'today motion' on 23.3.2018. On that day, the learned Standing Counsel for M.G.University, representing respondents 1 and 2, and also the W.P.(C)No.10345 of 2018 :-2-: learned Senior Counsel representing respondents 3 to 5 sought time to get instructions and accordingly the writ petition is listed today for further consideration. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for M.G.University, representing respondents 1 and 2, and also the learned Senior Counsel appearing for respondents 3 to 5. 4. Going by averments in the writ petition, the petitioner is a 2[nd] year student of Rajagiri College of Social Science who got admission for the BBA course. The grievance of the petitioner is that he had the requisite minimum attendance for writing the 4[th] Semester Examination. As the petitioner was affected by Chickenpox, he has to take total rest for a period of 10 days from 29.1.2018 to 9.2.2018. On 12.2.2018, the petitioner produced medical certificates dated 29.1.2018 and 9.2.2018 issued by one Dr.Anish John of Kottakkal Arya Vaidya Sala, Pala. He has also submitted Ext.P1 application dated 9.3.2018 for condonation of shortage of attendance. However, the request made by the petitioner for condonation of shortage of attendance was turned down vide Ext.P3 for the reason that he had already availed W.P.(C)No.10345 of 2018 :-3-: condonation for shortage of attendance in the 3[rd] Semester and that, condonation of attendance for the same academic year for more than once, is not permissible. 5. The particulars of percentage of attendance and the shortage of attendance of the petitioner, mentioned in Ext.P3, read thus; |Sl.No.|Course|Current<br>Attendance<br>(%)|Min.Current<br>Attendance<br>(%)|Shortage<br>Attendance<br>(%)| |---|---|---|---|---| |1|Common Core VII - Basic Informatics<br>for Management (BM04BA901)|67.11|75.0|7.89| |2|Common Core VIII-Cost Accounting<br>(BM04BA902)|69.09|75.0|5.91| |3|Corporate and Industrial Laws<br>(BM04CAA01)|70.59|75.0|4.41| |4|Economics-Managerial Economics<br>(EM03CA901)|68.12|75.0|6.88| |5|Marketing Management<br>(BM05BA902)|59.32|75.0|15.68| |6|COMMON SESSION (COM)|70.83|75.0|4.17| 6. The learned counsel for the petitioner, after making reference to the Regulations for Admission, Scheme and Syllabi for DDMCA Degree Courses issued by the 1[st] respondent University would point out that though a minimum attendance of 75% attendance for each subject of the total number of working days of the concerned Semester is prescribed, there is a provision W.P.(C)No.10345 of 2018 :-4-: for condonation of attendance of temporary break of study twice during the entire programme. As per the said Regulation, a student who has attendance and sessional marks lower than 75% and 50% respectively will not be permitted to appear for the End Semester Examination (ESE) and he has to redo the Semester at the next available opportunity. As per the said Regulation, a candidate can repeat the course or have condonation of attendance of temporary break of study, twice during the entire programme. Therefore, though the petitioner had already availed condonation of shortage of attendance in the 3[rd] Semester, as per the above Regulation issued by the 1[st] respondent University, the petitioner is entitled to make application for condonation of shortage of attendance for the 4[th] Semester as well, and as such, the stand taken by the respondents 3 to 5 is legally unsustainable. In such circumstances, the petitioner may be permitted to write the examination scheduled on 27.3.2018 for the paper 'Marketing Management'. 7. The learned Senior Counsel appearing for respondents 3 to 5 would point out that the college in question is an autonomous college. Section 116 of the M.G.University Act, 1985, W.P.(C)No.10345 of 2018 :-5-: inserted by the University Laws (Third Amendment) Ordinance, 2014, deals with conduct of examinations by such autonomous colleges. As per sub-section (3) of Section 116, the Academic Council of an Autonomous College shall frame a Manual of Examinations for the conduct of examinations in that college, within three months from the grant of autonomy or six months before the conduct of the first set of examinations, whichever is earlier. Sub-section (4) of Section 116 provides that the Manual of Examinations shall be based on the matters enumerated in clauses (a) to (d) therein. As per the second Proviso to subsection (4), the Manual of Examinations shall be submitted by an autonomous college to the University for its remarks and modifications for improving the quality of the process of examinations and upon receiving such remarks, incorporate them in the Manual of Examinations to the extent possible and inform the University of the reasons for not being able to comply with any of the suggestions. 8. In terms of Section 116 of the Act, the college has already got approval for its Examination Manual. Chapter 9 of that Examination Manual, which deals with condonation of W.P.(C)No.10345 of 2018 :-6-: ## shortage of attendance reads thus ; 1. Applications for condonation of shortage in attendance shall be made by the candidate in the prescribed format. Condonation of shortage of attendance shall be obtained seven (07) days before commencement of the respective End Semester Examinations. Students having a minimum of 75% attendance for each subject can register for the examination of respective subjects. Condonation of shortage of attendance shall be granted as follows: * The application shall be forwarded by the respective Asst.Controller of Examinations to the Controller of Examination with the prescribed fee. * Condonation of shortage of attendance to a minimum of 10% is allowed in the case of each subject in a semester. * Condonation of shortage of attendance is granted to a maximum of two times during the whole period of the programme. However condonation for a student shall be granted only once in an academic year. - Condonation shall be granted only once for one-year programme. Students shall produce valid documentary evidence as required while applying for condonation. * Condonation of the attendance is allowed only on valid grounds including one as deemed appropriate by the Principal.” 9. Learned counsel for respondents 3 to 5 with reference to the aforesaid provision under the Examination Manual would point out that condonation of shortage of attendance is granted to a maximum of two times during the whole period of the programme, subject to the condition that the condonation for a ## W.P.(C)No.10345 of 2018 :-7-: student shall be granted only once in an academic year. The learned Senior Counsel would submit that, in view of the aforesaid provision under the Examination Manual, the petitioner who had already availed condonation of shortage of attendance in the 3[rd] Semester Examination is not entitled for condonation in the 4[th] Semester Examination also. The learned Senior Counsel would submit that the Examination Manual of the institution has already been approved by the University. As far as the examination scheduled to be held on 27.3.2018 is concerned, i.e., the paper 'Marketing Management', the percentage of attendance of the petitioner is only 59.32%, which is beyond condonable limit of 65% and as such, the petitioner is not entitled for condonation of shortage of attendance. 10. The learned Standing Counsel for the 1[st] respondent University would submit that since the college in question is an autonomous college, the Examination Manual approved by the University governs the field and since the 1[st] respondent University has already granted approval for the Examination Manual, the entitlement of the petitioner for condonation of shortage of attendance and for appearing in the examination has W.P.(C)No.10345 of 2018 :-8-: to be decided with reference to the provisions under that Manual. 11. Having considered the submissions made by the learned counsel on both sides, this Court finds that the entitlement of the petitioner for condonation of shortage of attendance and the right to appear for the 4[th] Semester examination are governed by the provisions under the Examination Manual of the college in question. Paragraph 1 of Chapter IX of the said Examination Manual makes it explicitly clear that condonation of shortage of attendance can be granted to a maximum of two times during the whole period of programme. However, condonation for a student shall be granted only once in an academic year. 12. The fact that the petitioner had already availed condonation of shortage of attendance in the 3[rd] Semester examination is not in dispute. If that be so, going by the provisions under the Examination Manual, which govern the field, the petitioner is not entitled for condonation of shortage of attendance for the second time in the very same academic year. 13. In **Ashok Kumar Thakur v. University of Himachal Pradesh [(1973) 2 SCC 298]** a Three-Judge Bench of the Apex W.P.(C)No.10345 of 2018 :-9-: Court held that since the petitioner's deficiency in the matter of attendance exceeded 18 lectures in Economics and 20 lectures in Civics, it was beyond the jurisdiction or competence of the Principal to condone this deficiency, which completely destroys the case of the petitioner. The Apex Court held further that, the court cannot direct or compel an authority to do something which is beyond its legal competence to do. Since the Principal is the only authority who can condone and since it was beyond his competence to condone the shortage in question, the court cannot intervene in favour of the petitioner even if the petitioner had succeeded in making out a case for condonation. Paragraphs 4 and 5 of the said decision read thus; **“4** . The only question that now remains is whether the petitioner's deficiency in the matter of attendance could be condoned by any authority. The final lecture statement of the Bilaspur and Dharamsala colleges shows that the petitioner was short of 20 lectures in Civics, of 18 lectures in Economics, of 10 lectures in History and of 8 lectures in English. Now the rules as to condoning of deficiency in the matter of attendance of lectures are to be found in Chapter XV of the Punjab University Calendar 1969. Volume III (Rules). The relevant rule is 1 (a) and the material portion of it is in the following terms : "(1) Taking into consideration the results of the House examinations : W.P.(C)No.10345 of 2018 :-10-: (a) The Principal of a College affiliated in the Faculties of Arts, Science and Oriental Learning may condone the deficiency in lectures as under : (i) Upto 15 lecturers in each of the subjects;" Since the petitioner's deficiency in the matter of attendance exceeded 18 lectures in Economics and 20 lectures in Civics, it was beyond the jurisdiction or competence of the Principal to condone this deficiency. In our opinion this completely destroys the case of the petitioner. **5** . Considering that this case concerns the career of a young student we tried to look at the matter with all possible sympathy and consideration but we do not see how we can direct or compel an authority to do something which is beyond its legal competence to do. Since the Principal is the only authority who can condone and since it was beyond his competence to condone the shortage in question, we do not see how we can intervene in favour of the petitioner even if the petitioner had succeeded in making out a case for condonation. In our opinion, the appeal must fail on this short point. Much as we regret the unfortunate fact that the petitioner is going to lose almost two precious years of his academic life we are in law bound to confirm the decision of the High Court, and dismiss the petitioner's appeal. We, therefore, do so. In the circumstances of this case, however, we are making no order as to costs.” ## 14. In **Santosh Kumar v. Central Warehousing** **Corporation [(1986) 2 SCC 343]** the Apex Court held that what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Article 226 W.P.(C)No.10345 of 2018 :-11-: is not meant to avoid or circumvent the process of the law and the provisions of the Statute. For the reasons stated hereinbefore, this Court finds that the petitioner is not entitled for the relief sought for in this writ petition. In the result, this writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** ami/26.3.18 //True copy// P.A.to Judge