Mahatma Gandhi University v. Rejin C.A.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 26TH DAY OF JUNE 2014/5TH ASHADHA, 1936** ## **RP.No. 226 of 2014** **----------------------------** ## **W.P.(C)NO. 20811 OF 2013 OF THIS HONOURABLE COURT, DATED 06-11-2013** ## **---------------** ## **REVIEW PETITIONERS / RESPONDENT NOS.1 AND 2 IN THE W.P.(C) :** **---------------------------------------------------------------------------------------------------** **1. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS, ATHIRAMPUZHA, KOTTAYAM - 686 560.** **2. THE CONTROLLER OF EXAMINATIONS, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, ATHIRAMPUZHA, KOTTAYAM - 686 560.** **BY ADV. SRI.VARGHESE.M.EASO, S.C, M.G.UNIVERSITY** ## **RESPONDENT / PETITIONER IN THE W.P.(C) :** **----------------------------------------------------------------** **REJIN.C.A., CHELAMALAYIL HOUSE, PEZHAKKAPPILLY P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 661.** **BY ADVS. SRI.ALEXANDER JOSEPH** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 26-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **RP.No. 226 of 2014** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** - **ANNEXURE 1 : TRUE COPY OF THE LETTER NO.MAA/027/375(7)2011 (MGU 033) DATED 13.12.2011 FROM THE CONSULATE GENERAL OF THE REPUBLIC OF SINGAPORE.** - **ANNEXURE 2 : TRUE COPY OF THE PROVISIONAL CERTIFICATE PRODUCED BY THE RESPONDENT FALSELY CLAIMING THE AWARD OF BBA DEGREE SHOWING DATE AS 28.06.2011.** - **ANNEXURE 3 : TRUE COPY OF THE MARK LIST PRODUCED BY THE RESPONDENT FALSELY CLAIMING PASSING BAA SHOWING DATE AS 28.06.2011.** - **ANNEXURE 4 : TRUE COPY OF THE FORMAT OF THE PROVISIONAL CERTIFICATE OF THIS UNIVERSITY.** - **ANNEXURE 5 : TRUE COPY OF THE COUNTERFOIL OF CERTIFICATE DATED 28.06.2011 OF MR.NADIRSHA T.NASSER WITH REG NO.20031.** - **ANNEXURE 6 : TRUE COPY OF THE COMPLAINT DATED 17.04.2012 OF THE 2ND REVIEW PETITIONER TO THE GANDHI NAGAR POLICE STATION, KOTTAYAM.** - **ANNEXURE 7 : TRUE COPY OF THE COMMUNICATION TO THE STUDENT DATED 20.06.2013 OF THE UNIVERSITY REJECTING THE REQUEST OF THE RESPONDENT TO PUBLISH HIS RESULTS.** - **ANNEXURE 8 : TRUE COPY OF THE U.O.NO.2731/A1/2007/ADMN. DATED 22.11.2007 DELEGATING THE POWER OF THE VICE-CHANCELLOR FOR WITHHOLDING OR CANCELLING THE RESULT OF ANY CANDIDATE AT ANY UNIVERSITY EXAMINATION.** - **ANNEXURE 9 : TRUE EXTRACT OF PAGE 21, PARA 80 FROM THE NOTE FILE CONTAINING THE DECISION OF THE PRO-VICE-CHANCELLOR IN CHARGE OF VICE-CHANCELLOR REJECTING THE REQUEST OF THE RESPONDENT TO DECLARE HIS RESULTS.** - **ANNEXURE 10: TRUE COPY OF CHAPTER14-MALPRACTICES IN THE UNIVERSITY EXAMINATION IN THE EXAMINATION MANUAL OF THE MG UNIVERSITY.** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** ## **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. ## **K.Vinod Chandran, J.** ---------------------------------------- **R.P No.226 of 2014 in W.P.(C).No. 20811 of 2013** ----------------------------------------- **Dated this the 26[th] day of June, 2014** ## **O R D E R** The review petitioner/respondent in the writ petition, seeks review of the judgment, directing publication of results of the examination, written by the respondent herein, who was the writ petitioner. The writ petition was filed against Ext.P4 order, which communicated the decision of the Vice-Chancellor, to withhold the results of the 6[th] Semester examination, taken by the petitioner. The withholding was presumably done pursuant to a query received from the Consulate General, Republic of which verification of a Singapore, sought graduation in BBA, obtained by the writ petitioner from the University. On verification of the certificate R.P No.226/2014 ::2:: it was found that the Roll Number shown belongs to another candidate. Hence, criminal proceedings were launched by filing complaint before the jurisdictional police arraying the recruitment agency as also the petitioner as accused. 2. The petitioner asserted his innocence and blamed the recruitment agency for the forgery committed. The petitioner had approached the agency for admission to a post-graduate course in Singapore. The petitioner had completed the BBA course conducted by the University in March 2011 and had also cleared the 6[th] semester examination. The petitioner had to clear one paper of the 2[nd] semester, “Business Economics”, for which he had appeared in November, 2011; the results of which have been withheld. When the writ petition was heard, the University could not place before this Court any Rule or Regulation, by which the results of R.P No.226/2014 ::3:: the candidates could be withheld for reason only of the candidate having been involved in a criminal case. The writ petition, hence stood allowed by the judgment sought to be reviewed. 3. The review petition has been filed by the University claiming that the Examination Manual of the Mahatma Gandhi University, more specifically, Chapter XIV, dealing with “Malpractices In The University Examinations” dealt with the offence of tampering with University records, which invite the punishment of permanent debarring and withdrawal of pass certificate/degree/Diploma already awarded and a report to the Police. 4. Evidently, a report has been filed before the Police, which has led to a crime being registered, the prosecution of which is pending before the jurisdictional criminal court as of now. The University would contend that since the Examination R.P No.226/2014 ::4:: Manual provides for such withholding of results; for the offence of tampering, the Vice-Chancellor of the University, had approved Annexure-9 Minutes, as a consequence of which Ext.P4 has been issued. The Vice-Chancellor has been conferred with such power by the Syndicate, as is evidenced by Annexure 8; contends the University. The learned Counsel appearing for the University also placed before me a Division Bench decision of this Court reported in **AIR 1988 Kerala 151 Beena Philipose v. State of Kerala** , which according to the learned counsel prohibits invocation of Article 226 in matters where the Syndicate has issued orders. That, definitely, would be a strange proposition to be advanced before this Court, nor is it the proposition declared in the decision. 5. The University has filed the above review petition on the ground that the Examination Manual R.P No.226/2014 ::5:: provides for a punishment of withholding of results in case the mark lists are tampered with. The review is supported by an averment in the affidavit that the documents produced herein were not available to the University, despite exercise of due diligence. It would be strange to accept such a contention, when the documents now sought to be relied on were available with the University when the matter was heard and the counter affidavit was filed on the basis of the said documents, being; the query from the foreign State, the forged mark lists and so on and so forth One other document relied on, is the Examination Manual. If the officers of the University contend that such Examination Manual was not available or could not be traced out despite due diligence, the University has definitely, to revamp its administration before attempting to act on such regulations. If the impugned action was on the strength of the Manual, R.P No.226/2014 ::6:: the University cannot confess to that being not within its knowledge. The review hence, is found to be not maintainable. The contours of review jurisdiction has been succinctly stated in **State of West Bengal v. Kemal Sen Gupta [2008 (8) SCC 612]** . There is no error apparent from the face of the record. The documents now produced by the University, to urge review, cannot be said to be new or important materials which the University was not aware of and could not be traced out despite exercise of due diligence. No sufficient grounds too, exist to commend review. 6. Even looking at the Examination Manual; Chapter XIV deals with “Malpractice in the University examination”. A candidate appearing for any of the examination conducted by the University, if committing any malpractice with respect to **that examination** , he/she would be liable to be R.P No.226/2014 ::7:: proceeded against for punishment as stated therein. Tampering of University records is elaborated as a “willful tampering of mark lists to promote own interests such as getting admission etc”(sic). There is no case for the University that the writ petitioner has tampered with the mark list of the examination in which he appeared or was a candidate. 7. The writ petitioner, admittedly is a student of the BBA course, who has completed the course, and had passed in all the papers, except one in the second semester, which paper he had appeared in the supplementary examinations, the results of which along with the Certificate, is now withheld. The allegation is that the petitioner had forged certificates, with a register number of another candidate, and sought admission for higher studies, in an outside University. Hence it cannot be said that the petitioner tampered with the mark list issued to R.P No.226/2014 ::8:: him. The subtle distinction escaped the attention of the University. If at all the offence is chargeable it can only be on a fraud perpetrated on the University. That would not bring the misconduct within the ambit of Chapter XIV of the Examination Manual. Though criminal proceedings would lie on a charge of forgery, it cannot result in withholding of the results of the petitioner. The Manual speaks of tampering with the records of the University, with respect to an examination of the course pursued by the Student, and the mark lists issued to the student. No such allegation is levelled herein, the allegation is of forgery and not tampering. A criminal offense by itself will not attract the penalty of withholding of results, since it is common knowledge that even convicted persons are permitted to pursue courses offered by a University. A civilized society never curtails intellectual pursuits to even convicted R.P No.226/2014 ::9:: offenders. The reformative system should, in fact encourage, acquisition of knowledge which would necessarily, dispel criminal tendencies, in any individual. 8. With respect to the decision cited by the learned Standing Counsel, it has to be noticed that the facts are quite different. The context in which the declaration was made in the said judgment is when the proceedings therein were with proper notice to the delinquent and the objection filed by the delinquent having not raised the question of competence of the Syndicate at the first instance. A Division Bench of this Court, held that a question not raised before the authority with respect to its jurisdiction, cannot be first raised under Article 226. 9. The said proposition does not at all come to the aid of the University. In this case, there is absolutely no notice to the candidate. Review R.P No.226/2014 ::10:: petitioner was not put to notice about the query from the Consulate General of the foreign State nor was the petitioner issued with a show cause notice calling for his explanation. A criminal case was filed and the petitioner would have been aware of the same on being issued summons by the jurisdictional Court. The order of withholding referred to in Ext.P4 was never communicated to the writ petitioner nor was the petitioner intimated before such orders were passed. Annexure 8 shows that the office, put up a note to the Pro-Vice-Chancellor, on the petitioner making a request for publication of the results. The Pro-Vice-Chancellor seems to have approved the same. No notice was issued by the officer; who generated the office note, to the petitioner nor did the Pro-Vice-Chancellor deem it fit to do so before approving the office note, as indicated in Annexure 4. R.P No.226/2014 ::11:: 10. In such circumstance, the proceedings issued by the University has to be found to be bad for the further reason of violation of principles of natural justice. In a case, where the ground is solely of violation of principles of natural justice, necessarily this Court has to direct the authority to resume the proceedings from the stage at which, such violation has occurred and consider the issue afresh. However, in the present case, this Court having found that the Examination Manual would not clothe the University with any power, on facts, to punish the writ petitioner by withholding of results, there would be no purpose served in directing the authority to make fresh consideration. University is directed to publish the results of the petitioner as directed in the judgment sought to be reviewed. For all the above reasons; on the question of maintainability as also on merits, the review petition R.P No.226/2014 ::12:: is dismissed. University shall comply with the order within one month from the date of receipt of copy of this judgment. Sd/- **K.VINOD CHANDRAN,** jma Judge //true copy// P.A to Judge