Megha S. Nair & Others v. Vice Chancellor, Kerala University of Health Sciences & Others (W.P.(C).Nos.8657 & 10003 of 2019)

W.P(c).Nos.8657 & 10003 of 2019 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941 WP(C).No.8657 of 2019** ## **PETITIONERS:** |**1**|**MEGHA S.NAIR**| |---|---| ||**AGED 19 YEARS**| ||**D/O.SURESH.G.,KIZHAKKE PUTHEN VEEDU,CHERUKARA,**| ||**PAZHAYANNUR P.O., THRISSUR-680 587.**| |**2**|**ABHIMANYU.V.S.,**| ||**AGED 19 YEARS**| ||**S/O. SABU.V.V.,K.S.MANGALAM, P.O.VAIKOM,**| ||**KOTTAYAM-686 141.**| |**3**|**NIMYA.P.R.,**| ||**AGED 19 YEARS**| ||**D/O.RAMACHANDRAN.P.R., PANARIYIL HOUSE,**| ||**PATTIPARAMABU P.O., THIRUVILWAMALA,**| ||**THRISSUR-680 588.**| |**4**|**ANAGHA.P.,**| ||**AGED 20 YEARS**| ||**D/O.SUNIL KUMAR,**| ||**KOLANGARA PARAMBIL, THRISSUR-680 588.**| ||**BY ADVS.**| ||**SRI.BONNY BENNY**| ||**ARAVIND HARIDAS**| ## **RESPONDENTS:** |**1**|**THE VICE CHANCELLOR,**| |---|---| ||**KERALA UNIVERSITY OF HEALTH SCIENCE**| ||**MEDICAL COLLEGE P.O., THRISSUR-680 596.**| |**2**|**THE CONTROLLER OF EXAMINTION,**| ||**KERALA UNIVERSITY OF HEALTH SCIENCE,**| ||**MEDICAL COLLEGE P.O., THRISSUR-680 596.**| W.P(c).Nos.8657 & 10003 of 2019 2 - **3 THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCE, MEDICAL COLLEGE P.O., THRISSUR-680 596.** - **4 STUDENTS GRIEVNCE REDRESSAL COMMITTEE, KERALA UNIVERSITY OF HEALTH AND SCIENCE, MEDICAL COLLEGE P.O., THRISSUR-680 596.** - **5 THE PRINCIPAL, NEHRU COLLEGE OF PHARMACY, PAMPADY, THRISSUR-680 588.** - **BY ADV. SRI.P.SREEKUMAR, SC, KERALA UTY.HEALTH AND ALLIED SCIENCE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2019, ALONG WITH WP(C).10003/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(c).Nos.8657 & 10003 of 2019 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** ## **WP(C).No.10003 of 2019** ## **PETITIONERS:** |**1**|**SREEHARIHARAN J.M.**| |---|---| ||**AGED 19 YEARS**| ||**SON OF MADHUSUDANAN PILLAI,**| ||**1ST YEAR STUDENT (PHARM D)**| ||**EZHUTHACHAN COLLEGE OF PHARMACEUITICAL SCIENCES**| ||**P.O MARAYAMUTTAM, THIRUVANANTHAPURAM 695 124.**| |**2**|**SHILPA VINOD C,**| ||**AGED 20 YEARS**| ||**D/O. VINODAN, 1ST YEAR STUDENT (PHARM D)**| ||**EZHUTHACHAN COLLEGE OF PHARMACEUITICAL SCIENCES**| ||**P.O MARAYAMUTTAM, THIRUVANANTHAPURAM 695 124.**| |**3**|**SREELEKSHMY B.S,**| ||**AGED 19 YEARS**| ||**D/O. BABULAL, 1ST YEAR STUDENT (PHARM D)**| ||**EZHUTHACHAN COLLEGE OF PHARMACEUITICAL SCIENCES**| ||**P.O MARAYAMUTTAM, THIRUVANANTHAPURAM 695 124.**| |**4**|**NIHAL MUHAMMED,**| ||**AGED 21 YEARS**| ||**SON OF JESSYAMMAL,**| ||**1ST YEAR STUDENT (PHARM D)**| ||**EZHUTHACHAN COLLEGE OF PHARMACEUITICAL SCIENCES**| ||**P.O MARAYAMUTTAM, THIRUVANANTHAPURAM 695 124.**| |**5**|**ATHIRA G.H,**| ||**AGED 19 YEARS**| ||**D/O. HARILAL, 1ST YEAR STUDENT (PHARM D)**| ||**EZHUTHACHAN COLLEGE OF PHARMACEUITICAL SCIENCES**| ||**P.O MARAYAMUTTAM, THIRUVANANTHAPURAM 695 124.**| **BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR** W.P(c).Nos.8657 & 10003 of 2019 4 ## **RESPONDENTS:** - **1 THE KERALA UNIVERSITY OF HEALTH SCIENCES THRISSUR 680 596, REPRESENTED BY ITS REGISTRAR.** - **2 THE PRINCIPAL , 1ST YEAR STUDENT (PHARM D) EZHUTHACHAN COLLEGE OF PHARMACEUITICAL SCIENCES P.O MARAYAMUTTAM, THIRUVANANTHAPURAM 695 124.** **BY ADV. SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2019, ALONG WITH WP(C).8657/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(c).Nos.8657 & 10003 of 2019 5 ## _**P.V.ASHA, J.**_ **==> picture [205 x 88] intentionally omitted <==** ## _**JUDGMENT**_ The petitioners who have completed the first year of the Doctor of Pharmacy (Pharm D) course, are aggrieved by the action of the Kerala University of Health Science in applying the 2017 Regulations on them consequent to which they have failed in the first year examination. 2. As per 2017 regulations, a separate minimum of 50% marks is insisted for theory as well as internal assessment for it and also for practical as well as internal assessment for the same. According to the petitioners, when they were admitted for the course, 2016 Regulations were in force and a separate minimum was not insisted as in the new Regulations. The relevant provision under 2016 Regulations read as follows: _"Minimum Marks for passing Examination_ _A student shall not be declared to have passed examination unless he or she secures atleast 50% marks in each of the subjects separately in the University theory examination, practical examination and 50% marks in each of the theory and internal assessment taken together and 50 marks in practical examination including internal assessment marks.”_ But the criteria for passing the examination is changed when the University framed 2017 Regulations. Clause 1.16 of the 2017 Regulations read as follows: W.P(c).Nos.8657 & 10003 of 2019 6 _"1.16 Criteria for pass:_ _a) Candidate who has secured a minimum of 50% marks in theory (for internal and university examination separately) and 50% marks in practical (for internal and university examination separately) in any subject, shall be declared to have passed in that subject._ _b) If a candidate fails in either theory or practical she/he has to appear for both theory and practical of that subject.”_ According to the petitioners, the University has to apply the regulations which were in force at the time of their admission. The 2017 Regulations came into force only when it was published in the gazette on 31.01.2018; therefore those regulations can be applied only to those students who were admitted after it came into force;. the rules of the game cannot be changed in the midway; in case the regulations which are in force at the time of their admission were applied, they would have passed the examination. It is also their contention that the Pharmacy Council of India does not insist such separate minimum for theory/practical as well as internal assessment for each of it. 3. The learned Standing Counsel for the University points out that the petitioners in W.P(c).No.10003/2019 have not even secured the 50% for theory as can be seen from their own averments in the writ petition and therefore even if their contentions are accepted they would not be eligible to pass the examination even as per the previous regulation they are not eligible to pass the examination. It is also pointed out that the judgment in _**Fawaz Ajmal v. State of Kerala**_ relied on by the petitioners is reversed by the Apex Court by judgment dated 11.07.2012 in Civil Appeal Nos.5137 to 5150 of 2012. Regarding the prescription of higher standard by insisting separate minimum, it is pointed out that a Division Bench of W.P(c).Nos.8657 & 10003 of 2019 7 this Court in its judgment in _**Ashar A.M & Ors. v. Kerala University of Health Sciences, Trichur & anr.**_ [2014 KHC 151] while considering the case of MBBS students have upheld the regulations insisting separate minimum for pass, though the Medical Council did not insist the same. 4. The petitioners have not pointed out any provision in the Regulations 2017 or in the previous Regulations or any rule which provides that regulations which were in force at the time of admission to a course alone shall be applied to the students till the completion of the course or that the regulations issued after their course started cannot be applied to them. In _**Fawas Ajmal**_ 's case ( _supra_ ), the question was regarding the date on which the Regulations could be brought into force. Even otherwise the contention based on that judgment no longer lies when it is reversed by the Apex Court. 5. The contention that the University cannot prescribe regulations insisting separate standards than those prescribed by the Pharmacy Council of India is unsustainable as Pharmacy Council is fixing only the minimum standard. University is competent to fix higher standards, as held in the judgments in _**Preethi Sreevashava V State of Madhyapradesh**_ : (1999) 7 SCC 120, _**Ashar's**_ case ( _supra_ ), etc. Therefore, it cannot be said that the University regulation 2017 which prescribed a higher standard is illegal or that it cannot be applied to the petitioners. In the above circumstances, the Writ Petition is dismissed _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P(c).Nos.8657 & 10003 of 2019 8 ## **APPENDIX OF WP(C) 8657/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **PHOTOSTAT COPY OF THE IDENTITY CARD ISSUED TO THE 1ST PETITIONER** **EXHIBIT P1 (a)** - **PHOTOSTAT COPY OF THE IDENTITY CARD ISSUED TO THE 2ND PETITIONER** **EXHIBIT P1 B PHOTOSTAT COPY OF THE IDENTITY CARD ISSUED TO THE 3RD PETITIONER** **EXHIBIT P1 C PHOTOSTAT COPY OF THE IDENTITY CARD ISSUED TO THE 4TH PETITIONER** **EXHIBIT P2 PHOTOSTAT COPY OF THE DOCTOR OF PHARMACY (PHARM D) (REGULATION 2016-187 ACADEMIC YEAR ONWARDS)** **EXHIBIT P3 THE PHOTOSTAT COPY OF THE MARK LIST OF 1ST PETITIONER** **EXHIBIT P3 A THE PHOTOSTAT COPY OF THE MARK LIST OF 2ND PETITIONER** - **EXHIBIT P3 B THE PHOTOSTAT COPY OF THE MARK LIST OF 3RD PETITIONER** **EXHIBIT P3 C THE PHOTOSTAT COPY OF THE MARK LIST OF 4TH PETITIONER** **EXHIBIT P4 PHOTOSTAT COPY OF THE KERALA UNIVERSITY OF HEALTH SCIENCES REGULATIONS 2017, DOCTOR OF PHARMACY (PHARM D) (2017-2018) DT.31.1.18.** **EXHIBIT P5 PHOTOSTAT COPY OF THE PHARM D REGULATIONS 2008 DATED 10TH MAY 2008 ISSUED BY PHARMACY COUNCIL OF INDIA.** W.P(c).Nos.8657 & 10003 of 2019 9 ## **APPENDIX OF WP(C) 10003/2019** **PETITIONER'S EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE RELEVANT PAGES OF THE SYLLABUS FOR COURSES AFFILIATED TO THE UNIVERSITY (2016-2017 ADMISSION)** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE NOTIFICATION NO. 2891/AC1/GENA2/KUHS/2017 DATED 09-01-2018** - **EXHIBIT P3 TRUE COPY OF THE EXAMINATION RESULTS OF THE 1ST PETITIONER PUBLISHED ON 09-11-2018** - **EXHIBIT P4 TRUE COPY OF THE EXAMINATION RESULTS OF THE 2ND PETITIONER PUBLISHED ON 09-11-2018** - **EXHIBIT P5 TRUE COPY OF THE EXAMINATION RESULTS OF THE 3RD PETITIONER PUBLISHED ON 09-11-2018** - **EXHIBIT P6 TRUE COPY OF THE EXAMINATION RESULTS OF THE 4TH PETITIONER PUBLISHED ON 09-11-2018** - **EXHIBIT P7 TRUE COPY OF THE EXAMINATION RESULTS OF THE 5TH PETITIONER PUBLISHED ON 09-11-2018** - **EXHIBIT P8 TRUE COPY OF THE EXAMINATION RESULT OF SRI. SANDEEP SARMA S.S PUBLISHED ON 23-09-2017** - **EXHIBIT P9 TRUE COPY OF THE THEORY EXAMINATION TIME TABLE DATED 26-06-2018** - **EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGE OF THE PHARM D REGULATIONS 2018 DATED 10TH MAY 2008** **EXHIBIT P11 TRUE COPY OF THE DECISION REPORTED IN 2012 (2) KLT 726 DECIDED ON 24TH FEBRUARY 2012.**