Mohanam M.E. v. University of Calicut and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938** **WP(C).No. 16929 of 2016 (M)** - **----------------------------** **PETITIONER(S):** - **-------------** **1. MOHANAN M.E, AGED 61 YEARS, S/O. V.SANKARANARAYAN NAIR, 23/1485 D, SREECAITANAYA, THIRUVANNUR, PANNIYANKARA VILLAGE, KOZHIKODE - 673 029.** **2. ANIL KUMAR K AGED 52 YEARS, S/O. LATE P.V.NARAYANAN NAMBIAR, KRISHNA, 8/2, CHELANNUR, P.O.KANNANKARA, KOZHIKODE - 673 616.** **3. FIRSHAD KORAMBA, AGED 29 YEARS, S/O. MOIDEEN K, 'KORAMBA, NILAMBUR ROAD,CHANDAKKUNNU, MALAPPURAM - 679 342.** **4. ANURAJ B.R,AGED 27 YEARS, S/O. RAJAN T.T, THIRUTHAMTHODI HOUSE, VELAM PERUVAYAL P.O., KUTTIADI VIA, KOZHIKODE - 673 508.** **BY ADVS.SRI.ASWIN GOPAKUMAR** **SRI.ANWIN GOPAKUMAR SMT.KALA G.NAMBIAR SRI.K.AMAL NATH NAIK SMT.DEEPTI SUSAN GEORGE SRI.ARJUN RADHAKRISHNAN NAIR SMT.LALIA ELIZABETH PHILIP** **RESPONDENT(S):** **--------------** **1. THE UNIVERSITY OF CALICUT THENHIPALAM, KOZHIKODE - 673 635, REPRESENTED BY ITS REGISTRAR.** **2. THE CONTROLLER OF EXAMINATIONS UNIVERSITY OF CALICUT, THENHIPALAM, KOZHIKODE - 673 635.** **3. THE GOVERNMENT LAW COLLEGE LAW COLLEGE BUILDING, POOLAKKADAV ROAD, NGO QUARTER,S VELLIMADUKUNNU, KOZHIKODE - 673 012, REPRESENTED BY ITS PRINCIPAL.** **R3 BY GOVERNMENT PLEADER SMT. C K SHERIN R1-2 BY SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 16929 of 2016 (M)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **P1 A TRUE COPY OF THE NOTIFICATION EG-I/3/LLB/5YEAR/2009 DT. 12.4.2016 ISSUED BY THE 2ND RESPONDENT.** **P2 TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONERS TO THE 2ND RESPONDENT.** **P3 TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONERS TO THE PRINCIPAL, GOVERNMENT LAW COLLEGE, CALICUT.** **P4 TRUE COPY OF THE LETTER DT. 13.4.216 WRITTEN BY THE PRINCIPAL GOVERNMENT LAW COLLEGE CALICUT TO THE 2ND RESPONDENT.** **P5 TRUE COPY OF THE NOTIFICATION NO. EG-I/3/LLB/5YEAR/2009 DT. 25.4.2016 ISSUED BY THE 2ND RESPONDENT.** **P6 TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN WPC NO. 44/2016(E).** **P7 TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN WPC NO. 45/2016(E).** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** ## **TRUE COPY** **P.A TO JUDGE** **jma** ## **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.16929 of 2016-M ---------------------------------Dated this the 23[rd] day of May, 2016** ## **JUDGMENT** The petitioners are aggrieved with the fact that the petitioners were not imparted the class room instructions as stipulated by the Bar Council of India, which the University has to scrupulously follow. The reliance placed is on Rule 10 of the Rules of Legal Education, 2008 framed by the Bar Council of India [BCI]. Which is extracted hereunder: _“10. Semester system: The course leading to either degree in law, unitary or on integrated double degree, shall be conducted in semester system_ **in not less than 15 weeks for unitary degree course or not less than 18 weeks in double degree integrated course with not less than 30 class-hours per week** _including tutorials, moot room exercise and_ _W.P(C). No.16929 of 2016-M_ **2** _seminars provided there shall be at least 24 lecture hours per week.”_ 2. The petitioners also rely on the judgment of this Court reported in **Satheesh Kumar v. Mahatma Gandhi University [2015 (4) KLT 151]** , wherein it has been found that the prescription of the minimum hours of lecture classes and holding of tutorials, moot court and seminars by the BCI are to be scrupulously followed by the University. The possible lag in the course and telescoping of classes has been held to be an impermissible exercise. It was also held that the University cannot commit breach of the statutory rules, which have overriding effect even on the regulations of the University. 3. The learned counsel for the petitioners would contend that on the basis of the above Rule and the binding precedent, the examinations _W.P(C). No.16929 of 2016-M_ **3** now scheduled for 25.05.2016 has to be adjourned, since admittedly only 83 working days were available in the semester completed by the petitioners. The prescription as per Rule 10 falls short by 7 days and without holding 35 classes more the examination cannot be scheduled, is the argument. 4. When the matter was taken up for hearing in the morning, this Court specifically directed the learned Government Pleader to get instructions from the 3[rd] respondent as to the attendance of the petitioners. The learned Government Pleader on instructions submits that the first petitioner has 94.23%, the 2[nd] petitioner has 99.52%, the 3[rd] petitioner has 92.31% and the 4[th] petitioner has 94.23% of attendance in the semester, wherein 415 classes _W.P(C). No.16929 of 2016-M_ **4** were held in 83 working days. Undoubtedly, they are very serious students, but however it is a fact that they too have absented from certain classes, the reason for which may not be very relevant. 5. The prescription of minimum hours definitely has to be scrupulously followed as has been held by this Court and that is in the interest of moulding better professionals. But the postponement of examination now scheduled, would have to be looked at on the peculiar facts arising in the above case. Only due to the impending examination on 25.05.2016, this Court took up the matter for hearing even without a statement from the University, but however having heard the learned Standing Counsel on the written instructions received by him. _W.P(C). No.16929 of 2016-M_ **5** 6. The present academic year commenced on 03.11.2015 and till the close of the semester, ie. 31.03.2016, there could have been held only 83 working days. This is so since the calendar provided for only 83 working days. The University had first scheduled the examination as per Ext.P1 dated 12.04.2016 on 27.04.2016. The students had represented to the University through the Principal, which forwarding letter is produced as Ext.P4 dated 13.04.2016. The University adjourned the examination to 25.05.2016 as per Ext.P5 dated 25.04.2016. It is also submitted by the learned Standing Counsel appearing for the University that the postponement was made, only since the University thought it fit to permit the Colleges to carry on the further 7 days classes. It is also the _W.P(C). No.16929 of 2016-M_ **6** submission of the learned Standing Counsel for the University that there are six Colleges affiliated to the University, including the 3[rd] respondent College. All the other Colleges have conducted special classes and had complied with the regulation. The learned counsel for the petitioner would argue that all the other Colleges were private Colleges and they had financial considerations in so far as completing the course within the stipulated period. 7. This Court is not impressed by the said contention since the learned counsel is unable to point out how a financial benefit would enure or a monetary loss would occasion to the private colleges. Even the private colleges do not stand to loose merely by reason of there being an extension of a semester or by the next academic _W.P(C). No.16929 of 2016-M_ **7** year being commenced a little later. Already, as has been noticed, the academic semester commenced late, in the month of November, 2016. A postponement of examination at this stage would only lead to the course lagging, even for students in the colleges where the requisite classes were taken. This would definitely prejudice them and the petitioners have not chosen to implead any of such affected parties. 8. Admittedly the University had once postponed the examinations on the request of the students and had directed the colleges to hold the requisite classes. The peculiar situation of the classes falling short, in the 3[rd] respondent college, has occurred since the Principal of the 3[rd] respondent was of the opinion that the Government Law College Teachers are vacation _W.P(C). No.16929 of 2016-M_ **8** staff and cannot be compelled to take classes during April/May vacation;as expressed in Ext. P4. This Court is unable to countenance the said stand since the employees of a department, having vacations like the schools and colleges, are permitted to absent from duty and draw pay for the vacation period only since there is no regular working during the vacations. But that is not a prohibition from employing them during the vacations if an exigency occurs. The reference to vacation department is made in Rule 81 of Part I of Kerala Service Rules which is extracted hereunder: _“A Vacation Department is a Department or_ _part of a Department to which regular vacations are allowed during which the officers serving in the Department are permitted to be absent from duty.”_ _W.P(C). No.16929 of 2016-M_ **9** 9. The faculty of the government College are termed vacation staff only to entitle them to pay and allowances during the vacations when there is no regular duty. But they could be called for regular work even during the vacation with additional benefits if any as provided in the service rules. It is not as if the State pays the salary during the vacation for the staff to keep away totally from work. Further, it is also to be noticed that the Teachers have a social responsibility and their status cannot be reduced to one for mere livelihood. This Court would not observe anything further, since neither the Principal nor the faculty are made parties in the writ petition. However the fact remains that despite sufficient opportunity, the 3[rd] respondent College did not hold the requisite _W.P(C). No.16929 of 2016-M_ **10** classes. 10. As of now, what assumes relevance is that, the College has conducted classes in all the 83 working days available from the date of semester commencement. Though the petitioners have been extremely diligent in attending classes, it is a fact that they had also absented from attending certain classes. It is also an admitted fact that the University permits absence up to 25% and a student is allowed to participate in the examination only if he has a minimum of 75% attendance. Hence in an ideal situation of 450 classes a student need attend only 338 classes. The fact that they had attended for more than 90% of the classes would indicate that they would have much more than the 75% attendance required. If the petitioners _W.P(C). No.16929 of 2016-M_ **11** contention is accepted; as a corollary no student who has less than the attendance in the classes as stipulated by the BCI can be permitted to appear for the examinations. **11. Satheesh Kumar (supra)** considered the issue of telescoping of classes to avoid courselag and also the overlapping of regular and supplementary examinations and held the prescription of the BCI to be binding on the University and the College. Therein, the learned single judge during the pendency of the writ petition had called for further details upon which the University itself rescheduled the examinations. The declaration made by the learned Single Judge is binding here too and the University quite conscious of the same had postponed the examinations once and directed the _W.P(C). No.16929 of 2016-M_ **12** Colleges to comply with the prescription of the BCI. It was the failure of the 3[rd] respondent to conduct the classes that led to the present situation. 12. It is quite pertinent that there are other students studying in the other Colleges, who have been imparted class room training as required and who are awaiting the holding of the examinations, day after tomorrow. None of them or the said Colleges are impleaded herein. The postponing of examination on the request of four students of a particular College would result in grave prejudice to the other students, who are awaiting examinations and would also expect the University to publish the results as soon as possible. Even now, the submission of the learned Government Pleader is that, the classes _W.P(C). No.16929 of 2016-M_ **13** could be held only after the commencement of the next academic year, ie. after the vacation. Considering the balance of convenience, this Court is not inclined to exercise the discretion conferred under Article 226 of the Constitution of India and invoke the extraordinary powers, essentially since none of the other Colleges or the other students are impleaded even in a representative capacity. In such circumstance, this Court is of the opinion that the writ petition is liable to be dismissed and the same is dismissed. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** Sp/23/05/16 //true copy// P.A to Judge