Mahatma Gandhi University v. Sajith Bose & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** **WA.No.1544 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 8082/2020(I) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3 IN WPC 8082/2020:** |**1**|**THE MAHATMA GANDHI UNIVERSITY,**| |---|---| ||**REPRESENTED BY ITS REGISTRAR, KOTTAYAM-686 001.**| |**2**|**THE VICE CHANCELLOR,**| ||**THE MAHATMA GANDHI UNIVERSITY,**| ||**PRIYADHARSHINI HILLS, KOTTAYAM-686 001.**| |**3**|**THE CONTROLLER OF EXAMINATIONS,**| ||**THE MAHATMA GANDHI UNIVERSITY,**| ||**PRIYADHARSHINI HILLS, KOTTAYAM-686 001.**| **BY ADV. SRI.ASOK M.CHERIAN** ## **RESPONDENT/S:** - **1 SAJITH BOSE, AGED 30 YEARS, S/O. BOSE, ASARIPARAMBIL HOUSE, KARANAKODAM, THAMMANAM P.O., ERNAKULAM DISTRICT.** - **2 GOVERNMENT LAW COLLEGE, ERNAKULAM-682 011, REPRESENTED BY ITS PRINCIPAL.** - **3 THE PRINCIPAL GOVERNMENT LAW COLEGE, ERNAKULAM, PIN-682 011.** **SRI.P.MOHAMED SABAH FOR R1 SRI.ARAVINDAKUMAR BABU, SR GP FOR R2 AND R3** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1544 of 2020** **2** ## **JUDGMENT** Dated this the 26[th] day of November, 2020 ## **S.Manikumar, C.J.** Instant writ appeal is directed against the judgment of a learned single Judge in W.P.(C) No.8082 of 2020 dated 23.10.2020, by which directions have been issued to the competent authority, to reconsider the application submitted by the 1[st] respondent/writ petitioner, to redo the internal examination. 2. Short facts leading to the filing of the writ petition are that, the writ petitioner/1[st] respondent herein, has completed his LLB Course, in the year 2013. He has scored very low marks in some of the internal examinations, 5[th] to 10[th] semesters, and hence, failed in the said subjects. Though the 1[st] respondent has appeared for the external supplementary examinations, he has failed every time, as he has got very low marks in the internal assessments. 3. Aggrieved by the same, 1[st] respondent has filed an application before the Controller of Examinations, Mahatma Gandhi University, Kottayam, 3[rd] respondent therein, seeking permission to redo the internal examinations in which he has scored very low marks. But, the same was rejected by the Controller of Examinations stating that the petitioner **W.A.No.1544 of 2020** **3** ought to have made an application, within a period of one year, after completion of the course. 4. Being aggrieved, 1[st] respondent has approached the writ court, by filing W.P.(C) No.26966 of 2018, which was disposed of by judgment dated 10.12.2018, with a direction to the Vice Chancellor of Mahatma Gandhi University to bestow his attention to the matter and consider the request of the petitioner/1[st] respondent herein for one more chance to redo the internal examination. The University, by communication dated 29.1.2020, has informed the 1[st] respondent that his request is rejected. Hence, the 1[st] respondent has once again approached this Court by filing W.P.(C) No.8082 of 2020. After hearing both parties, a learned single Judge of this Court disposed of the writ petition, by ordering thus: “11. I, consequently direct the concerned Authority of the University to reconsider the petitioner's case as a special one as ordered above, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment.” 5. Being aggrieved, Mahatma Gandhi University, represented by its Registrar and its Vice chancellor and Controller of Examinations, have filed the instant writ appeal, inter alia, raising the following grounds: - i. As per order U.O. No. AC.AIV/3/558/CC/LLB/2003 dated 28-06-2003 and U O No. 3970/A4/2/2018/Academic dated 14-05-2018, regarding the **W.A.No.1544 of 2020** **4** chance to redo internal assessment of any paper of LLB Semester system, the student should avail the facility for re-do within a period of one academic year after the completion of the course. - ii. While directing the University to reconsider the petitioner's case as a special case, the learned single Judge failed to see that appellant University had re-examined the matter earlier, in compliance with the judgment of this Court dated 10-12-2018 in W.P.(C). No. 26966/2018 and the matter had been settled by the Academic Council - the apex body of the University, in academic matters. - iii. Writ court failed to note that appellant University discontinued the BA LLB Course by 2010 and provided opportunity for students who pursued the course to re-do the internals, strictly adhering to the regulations. Permitting exemption and alteration in the regulations, after a decade, is not feasible. - iv. Writ court also failed to note that the extremely low scores of the writ petitioner, in internal assessment of many papers in several semesters, as evident from Exhibit P1, manifest the uncaring attitude of the petitioner in the internal assessment, especially when it is admitted by him that marks of an examination is apportioned between internal and external examinations. Internal assessment marks are given based on the performance of the student in the college. Attendance, Assignment submission and Test papers form components of internal assessment. Prompt response to even one component would enable a student to secure some marks in internal assessment. - v. Writ court failed to appreciate that as per the course regulations to secure minimum pass marks, there is no separate pass minimum for external and internal examinations and the writ petitioner could have improved his external marks to secure pass minimum, as there is no separate pass minimum for external and internal assessments. **W.A.No.1544 of 2020** **5** 6. Heard Mr. Asok M. Cherian, learned standing counsel for the Mahatma Gandhi University, who made submissions on the above-said grounds, and perused the material on record. 7. Material on record discloses that one Mr. K.V. Muhazin, Kannur District, a student of five year BA.LL.B Course in the Government Law College, Ernakulam, for the year 2020-2015, could not fare well in the V, VI, VII, VIII and IX Semesters internal assessments. Apparently, 20102015 batch was the last batch for the said five year course. From the year 2011-2012, a new five year course (B.Com. LL.B) was put in place of the earlier course. He had requested for a chance to redo the internal assessments for the above semesters. Writ court vide judgment in W.P. (C) No.25614 of 2017 dated 21.12.2017 allowed the said prayer. Being aggrieved, University filed W.A. No.648 of 2018. 8. Case of the petitioner therein, as summarized in paragraph 2 of the judgment dated 5.7.2018 in W.A. No.648 of 2018 filed by the appellant University, is reproduced hereunder: “2. It would appear that the petitioner, by an application submitted within the prescribed period of one year from the date of completion of the course, sought for re-doing the internal assessment for the Vth , VIIth and IXth semesters. The said request of the petitioner was accepted by the respondent University by Ext.P1 order, dated 4.3.2016. With regard to the internal assessments for the VIth and VIIIth semesters, while it **W.A.No.1544 of 2020** **6** is the case of the petitioner that he could not appear for the internal assessments pertaining to the said semesters, he had chosen to wait for the publication of the results of the external examinations before making an application for re-doing the internal, if found necessary. It would appear that, on declaration of the external examination results, he found that he had secured the necessary overall marks in respect of the VIIIth semester, but did not secure the necessary overall marks for a pass in the VIth semester. It is, therefore, that he preferred an application for redoing the internal assessment for the VIth and VIIIth semesters. It is not in dispute that the said application for redoing the internal assessment in respect of VIth and VIIIth semesters was also preferred on 23.9.2016, well within the period of one year from the date of completion of the course, as noted in the University Regulation. The request of the petitioner for redoing the internal assessments for the Vith and VIIIth semesters was, however, rejected by the University by Ext.P6 order dated 23.12.2016, notwithstanding Ext.P3 recommendation by the Government Law College, Ernakulam recommending the case of the petitioner for redoing the internal assessment for the said semesters. The petitioner, therefore, approached this court seeking for a direction to the respondent University to grant permission to the petitioner for redoing the internal assessment for the VIth and VIIIth semesters. By the impugned judgment, the learned Single Judge, taking note of the peculiar factual circumstances, directed the University to take up the request made by the petitioner for redoing the internal assessment for the VIth semester of the BAL.LLB course, taking note of the recommendations of the Principal of the Government Law **W.A.No.1544 of 2020** **7** College, Ernakulam and pass orders on the same as a special case. The said orders were directed to be passed within a period of three weeks from the receipt of a copy of the judgment. By way of abundant caution, the learned Judge also made it clear that the judgment would not be treated as a precedent to be followed in subsequent cases.” 9. Though, in the abovesaid writ appeal, Mahatma Gandhi University has contended that the proceedings dated 28.6.2003 of the University was a regulation, a Hon'ble Division Bench, in the judgment in W.A. No.648 of 2018 dated 5.7.2018, held that it was only an order and not a regulation. 10. Though, in the abovesaid writ appeal, request for redoing the internal assessments of V, VII and IX Semesters and, for the same purpose, for the VI and VIII Semesters, were made separately, it is an admitted fact that, the requests were made, within the period of one academic year after the completion of the course. Indisputably, there was a change of pattern, in the five year course from 2011-12 onwards and that, 2010-2015 was the last batch of the previous five years course. Though the University, in W.A. No.648 of 2018, has raised a contention that there is a change in the pattern and course content, W.A. No.648 of 2018 filed by the University had been dismissed, upholding the views of the learned single Judge in the judgment dated 21.12.2017 in W.P.(C) **W.A.No.1544 of 2020** **8** No.25614 of 2017. Reverting to the case on hand, we find that the only distinguishable fact in the present case is that the request for redoing the internal assessments, for the semesters stated supra, was not made, within the period of one academic year. 11. Let us see the prayer made in W.P.(C) No.26966 of 2020. Writ petitioner therein/1[st] respondent, in the above writ petition, has sought for a mandamus, directing respondents the Mahatma Gandhi University, represented by its Registrar, and the Controller of Examinations, Mahatma Gandhi University, respondents 1 & 3 therein, to reconsider Exhibit-P1 application dated 27.02.2018 submitted by him and allow him to redo his internals. Now, let us consider, what the learned single Judge in the judgment dated 10.12.2018 in W.P.(C) No.26966 of 2018, has considered and ordered. As it is a short judgment, we deem it fit to extract the same in its entirety. “The petitioner wants to re-do the internal examinations. The petitioner's attempt to clear the Theory Examination failed on account of shortage of marks in internal. 2. The learned Standing Counsel for the University would submit that as per the University Regulations such a request cannot be acceded. 3. I am of the view that if the petitioner moves the Vice Chancellor for relaxation of the existing University Regulations, the Vice Chancellor shall bestow his attention and at least **W.A.No.1544 of 2020** **9** consider his request for one more chance to re-do the internal examination. Appropriate orders shall be passed on the representation within one month from the date of receipt of a copy of this judgment. The Writ Petition (Civil) is disposed of accordingly.” 12. Though before the writ court, Mahatma Gandhi University, appellant No.1, had contended that as per the University regulations, the request of the 1[st] respondent is contrary to the regulations, after considering the submissions of the University, writ court, in the judgment in W.P.(C) No.26966 of 2018 dated 10.12.2018, directed the Vice Chancellor of Mahatma Gandhi University, to consider the request of the petitioner therein. 13. At this juncture, one has to consider as to whether, objections of the appellant University in W.P.(C) No.26966 of 2018, with reference to the proceedings dated 28.06.2003, claimed as a regulation, which a Hon'ble Division Bench vide judgment dated 5.7.2018 in W.A. No.648 of 2018, held that it is only an order and not a regulation of the University, has been considered in W.P.(C) No.26966 of 2018, or not. 14. We are of the view that, de hors the objections, writ court, in W.P.(C) No.26966 of 2018, has directed the case of the petitioner therein, to be considered. At the risk of repetition, paragraph (2) of the judgment in W.P.(C) No.26966 of 2018 dated 10.12.2018 is reproduced: **W.A.No.1544 of 2020** **10** “2. The learned Standing Counsel for the University would submit that as per the University Regulations such a request cannot be acceded.” 15. As there is no challenge by the Mahatma Gandhi University, as against the said decision, it is not open to the appellant University to canvass the same point, in any subsequent proceedings, on the same issue. 16. Pursuant to the directions in the judgment dated 10.12.2018 in W.P.(C) No.26966 of 2018, Mahatma Gandhi University has passed the order dated 29.01.2020, which is extracted hereunder: ## “MAHATMA GANDHI UNIVERSITY (Summary) Five Years BAL, LLB - Mr. Sajith Bose. Complying with the judgment of the Hon'ble High Court in WPC No.26966/18 regarding - to maintain the existing internal re-do regulations - not to allow Mr. Sajith Bose to have the opportunity of internal re-do - ordered issued ------------------------------------------------------------------------------ ## ACADEMIC A4 SECTION U ONo. 491/ AC A4/2020/MGU P. D Hills, Date: 29/01/2020 ------------------------------------------------------------------------------ Read:- 1) Judgment of the Hon'ble Court in WPC 26966/18 - 2) U O No. 3970/A4/2/2018/Academic dated 14/05/2018 - 3) Item No. 70/4881/AC AIV/2/2018 in the Minutes of - the meeting of Academic Council on 30/11/2019 (presented as item No. 01/19.11 /190797 in the Syndicate Meeting on 31/12/2019. ## **ORDER** As per reference (1) judgment in writ petition filed before the Hon'ble High Court of Kerala by Mr. Sajith Bose, a five-year BALLB student for a period of 2008-2013, seeking relaxation in **W.A.No.1544 of 2020** **11** the existing regulations to allow internal re-do, the Hon'ble Court has directed to examine the possibility of relaxation of the existing regulatory provisions and sanction of internal re-do if an application for relaxing the existing regulations to permit internal de-do is submitted to the Vice Chancellor. In similar circumstances,Board of Studies in Law (UG) had been entrusted with examining the subject of giving each opportunity to the internal re-do and the Board recommended to maintain the existing internal re-do system and university order aforementioned as ref (2) was issued. However, considering the Court order, Hon'ble Vice-Chancellor on 30/01/2019 ordered to submit the matter of granting an opportunity to Mr. Sajith Bose to do an internal re-do to the Academic Council. The matter was deliberated in the meeting of the Academic Council on 30/11/2019 and as the Board of Studies in Law recommended to maintain the existing Regulations of the Course that the opportunity to re-do must be availed within one academic year of completion of the course, it was decided not to grant opportunity for re-doing internal to Sri. Sajith Bose, The matter was then taken up in the meeting of the Syndicate on 31/12/2019 Accordingly, orders are issued as per the decision of the Academic Council complying with the Judgment in WPC 26966/2018 Jessy John Assistant Registrar 2 (Academic) For Registrar Copy to 1. P S of Vice Chancellor/ Pro-Vice chancellor 2. P A of Registrar/ Controller of Examination 3. Sajith Bose 4. J R/ D RI A R (Academic/Examinations) 5. E 1 29/37 Sections 6. A C C 1/11 Sections 7. Content Management Section 8. Record Section/ File Copy/ Stock file” ## 17. Yet another aspect to be considered by this Court, on the facts and circumstances of this case, is that, what exactly the writ court has **W.A.No.1544 of 2020** **12** directed in W.P.(C) No.26966 of 2018 dated 10.12.2018 and who was directed to consider the application of the 1[st] respondent. 18. At the risk of repetition, paragraph 3 of the judgment in W.P. ## (C) No.26966/2018 dated 10.12.2018 is reproduced: “3. I am of the view that if the petitioner moves the Vice Chancellor for relaxation of the existing University Regulations, the Vice Chancellor shall bestow his attention and at least consider his request for one more chance to redo the internal examination. Appropriate orders shall be passed on the representation within one month from the date of receipt of a copy of this judgment.” 19. Let us consider as to whether, the Vice-Chancellor of the Mahatma Gandhi University, being the highest authority under the Mahatma Gandhi University Act, 1985, has exercised his jurisdiction. 20. Perusal of the order - U.O. No.491/AC A4/2020/MGU dated 29.01.2020, extracted above, shows that the Academic Council of the said University has passed the said order. There are no materials to indicate that the Vice-Chancellor of Mahatma Gandhi University has exercised his powers, and acted as per the directions of this Court in the judgment dated 10.12.2018 in W.P.(C) No.26966/2018. 21. Secondly, let us consider what the learned single Judge in the judgment dated 23.10.2020 in W.P.(C) No.8082 of 2020 has considered. Paragraphs 6 to 9, which are relevant to this context, are extracted hereunder: **W.A.No.1544 of 2020** **13** “6. Even when I hear the learned Sanding Counsel for the University as afore, it is evident from Ext.P3 judgment that this Court had intended that the case of the petitioner be considered as a special one, without being treated as a precedent, taking note of his exceptional circumstances and as to whether any relaxation in the rigour of the Regulations can be given to him, so as to complete his course. 7. However, when one looks through Ext.P4, it is luculent that the University has simply relied upon the Regulations to say that a student cannot be granted a further chance of re-assessment of Internal Assessment if he did not apply within one year of completion of the course. 8. It is thus indubitable that Ext.P4 rejects the petitioner's request solely on the ground of delay. 9. I am, therefore, of the firm view that the University must reconsider the petitioner's case, adverting to the tenor of Ext.P3 judgment, as also my observations above; and decide whether any relaxation in the time frame as fixed by the Regulations can be granted to the petitioner, to seek reassessment of the Internal Examinations, as a special case.” 22. Thus, while setting aside Exhibit P4 rejection order dated 10.12.2018, writ court in the impugned judgment has directed the competent authority to reconsider the application of the 1[st] respondent. 23. It is not in dispute that there is a delay on the part of the 1[st] respondent in submitting the application. However, as stated supra, when the order dated 28.06.2003 was pressed into service by the 1[st] appellant **W.A.No.1544 of 2020** **14** University for denial of the reliefs sought for in W.P.(C) No.26966 of 2018, in the earlier round of litigation, the same has been considered. Therefore, it is not open to the appellants to harp on the same order, again and again. 24. We direct the Vice-Chancellor of Mahatma Gandhi University to consider the application of the 1[st] respondent/writ petitioner, keeping in mind the discussion made in the foregoing paragraphs, as a special case, within two months from the date of receipt of this judgment. Writ Appeal is dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** **/TRUE COPY/** **P.A. TO JUDGE**