Muhammed Ameen K.K. and others v. Global Education and Management Studies (GEMS) Co-operative Ltd., and 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** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** ## **WA.No.443 OF 2021** **AGAINST THE ORDER/JUDGMENT IN WP(C) 4765/2020(U) OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** |**1**|**MUHAMMED AMEEN K.K.**| |---|---| ||**AGED 20 YEARS**| ||**KUZHIKANDHAN HOUSE, IRUBUZHI, MALAPPURAM.**| |**2**|**AHAMMED FAJAS V.S.,**| ||**AGED 22 YEARS**| ||**S/O.MEHABOOB, VENGASSERI HOUSE, VADAKKENGARA,**| ||**MALAPPURAM.**| |**3**|**ADHISH JASH B.,**| ||**AGED 20 YEARS**| ||**S/O.SAILESH BABU, DHANYA HOUSE, MELMURI, MALAPPURAM.**| |**4**|**VISHNU K.K.,**| ||**AGED 21 YEARS**| ||**S/O.SASEENDRA KUMAR, KANNENKULANGARA HOUSE,**| ||**KAZHUKACHIRA CHERUR, VENGARA, MALAPPURAM.**| |**5**|**HISHAM NOUSHAD MUHAMMED,**| ||**AGED 23 YEARS**| ||**S/O.NOUSHAD MUHAMMED, VILLAN HOUSE, VALIYAD, KODUR,**| ||**MALAPPURAM.**| |**6**|**SALMANUL FARIS M.,**| ||**S/O.KUNJU MUHAMMED, MUSLIYARAKATHU HOUSE,**| ||**VADAKKEMANNA, KODUR, MALAPPURAM.**| |**7**|**MUHAMMED SHAMMER P.M.,**| ||**AGED 22 YEARS**| ||**S/O.MUHAMMED MUSHTAF, PARAYIL HOUSE, J.N.ROAD,**| ||**PERUNTHALMANNA, MALAPPURAM.**| |**8**|**MUHAMMED ASHIQ P.,**| ||**AGED 21 YEARS**| ||**S/O.ABOOBAKER, PUALVAZHI HOUSE, PATHIRAMANNA,**| ||**PUZHAKATTIRI, MALAPPURAM.**| WA.No.443 OF 2021 2 - **9 RASIK ALI K.P., AGED 21 YEARS S/O.CHEKKUTTY, KARUVALLIPATHIKKAL, RAMAPURAM, BLOCKUMPADI, MALAPPURAM.** - **10 MOHAMMED SHEFEEAQE, AGED 23 YEARS S/O.UMAIBA, VADAKKATHIL HOUSE, PANANGANPARA, MALAPPURAM.** - **11 MUHAMMED MUHSIN E.C., AGED 22 YEARS** - **S/O.BASHEER, ELACHOLA, VELLILA, MALAPPURAM.** - **12 DHANISH RASAL, AGED 22 YEARS** - **S/O.MUHAMMED HANEEFA, KOZHIHIPARAMBIL HOUSE, THOOTHA, PERUNTHALMANNA, MALAPPURAM.** **BY ADVS.** **SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN** **SMT. ELSAMMA JOSEPH ARACKAL** ## **RESPONDENTS/RESPONDENTS:** - **1 GLOBAL EDUCATION AND MANAGEMENT STUDIES (GEMS) CO-OPERATIVE LTD., RAMAPURAM, MALAPPURAM679321, REPRESENTED BY VICE CHAIRMAN.** **2 M.VASUDEVAN, VICE CHAIRMAN, GLOBAL EDUCATION AND MANAGEMENT STUDIES (GEMS) CO-OPERATIVE LTD., RAMAPURAM, MALAPPURAM-679321.** - **3 PRINCIPAL, GLOBAL EDUCATION AND MANAGEMENT STUDIES (GEMS), RAMAPURAM, MALAPPURAM-679321.** - **4 NAVEEN MOHAN, PRINCIPAL,** **GLOBAL EDUCATION AND MANAGEMENT STUDIES (GEMS) COOPERATIVE LTD., RAMAPURAM, MALAPPURAM-679321.** - **5 P.T.HAMZA, DIRECTOR, GEMS ARTS AND SCIENCE COLLEGE, RAMAPURAM, MALAPPURAM-679321.** WA.No.443 OF 2021 3 - **6 MUHAMMED NAVAS, VICE PRINCIPAL, GEMS ARTS AND SCIENCE COLLEGE, RAMAPURAM, MALAPPURAM-679321.** - **7 HEAD OF THE DEPARTMENT OF MULTIMEDIA, GEMS ARTS AND SCIENCE COLLEGE, RAMAPURAM, MALAPPURAM-679321.** - **8 HEAD OF THE DEPARTMENT OF SOCIOLOGY, GEMS ARTS AND SCIENCE COLLEGE, RAMAPURAM, MALAPPURAM-679321.** - **9 HEAD OF THE DEPARTMENT OF B.SC MATHEMATICS, GEMS ARTS AND SCIENCE COLLEGE, RAMAPURAM, MALAPPURAM-679321.** - **10 HEAD OF THE DEPARTMENT OF TRAVEL AND TOURISM, GEMS ARTS AND SCIENCE COLLEGE, RAMAPURAM, MALAPPURAM-679321.** - **11 STAFF ADVISOR, GEMS ARTS AND SCIENCE COLLEGE, RAMAPURAM, MALAPPURAM-679321.** - **12 THE REGISTRAR, UNIVERSITY OF CALICUT, TIRUR-CALICUT ROAD, THENHIPPALAM, MALAPPURAM-673635.** - **13 THE CONTROLLER OF EXAMINATIONS, UNIVERSITY OF CALICUT, TIRUR-CALICUT ROAD, THENHIPALAM, MALAPPURAM-673635.** - **14 THE VICE CHANCELLOR, UNIVERSITY OF CALICUT, TIRUR-CALICUT ROAD, THENHIPALAM, MALAPPURAM-673635.** - **15 THE BOARD OF ADJUDICATION OF STUDENTS GRIEVANCES, UNIVERSITY OF CALICUT, TIRUR-CALICUT ROAD, THENHIPALAM, MALAPPURAM-673635.** ## **SRI.P.C.SASIDHARAN, STANDING COUNSEL** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.443 OF 2021 4 ## **JUDGMENT** ## **Dated this the 8th day of March 2021** ## **SHAJI P.CHALY,J** This appeal is filed by the writ petitioner in W.P.(C) No.4765/2020, challenging the judgment of the learned Single Judge dated 18.12.2020, whereby the following reliefs sought for by the petitioners were declined: i.To issue a writ in the nature of mandamus or any other writ, order or direction, compelling and commanding the respondents 3,5,12, 13 and 14 to condone the absence of the petitioners which resulted in the shortage of attendance and to declare that they are eligible for appearing in the ensuing 6th semester examinations. ii. To issue a writ in the nature of mandamus or any other writ, order or direction, compelling and commanding the respondents 3,5,12, 13 and 14 to permit the petitioners for appearing the examinations commencing from 2/3/2020 and also for appearing for the practical examinations 2020 of 6th semester multi-media. iii.To issue a writ in the nature of mandamus or any other writ, in directing the 15th respondent to conduct an enquiry as to whether the petitioners are eligible for condonation of their shortage of attendance, appearing for the examination commencing from 2.3.2020. iv. To declare that the petitioners are entitled to get condonation for the shortage of their attendance in writing the examination commencing from 2.3.2020 onwards. v. To grant such other reliefs prayed for by the petitioners in the interest of justice. WA.No.443 OF 2021 5 2. Brief material facts for the disposal of the writ appeal are as follows; appellants are studying in 6[th] semester in GEMS (Global Education and Management Studies) Arts and Science College, Ramapuram, Malappuram District. The grievance of the appellants were that in spite of the fact that they have got sufficient reasons for the deficiency of attendance, they are not given condonation enabling them to appear for the 6[th] semester (final year) examinations. 3. It is clear that the appellants were having 64%, 53.75%, 57%, 56% and 26% of attendance, whereas the regulations of the University prescribes that 75% attendance should be secured by the students in order to sit for the examination. However, the University, on an application, has got power to condone attendance by 9 days. It is clear and evident from the pleadings put forth by the appellants that the attendance secured by the appellants were beyond the condonable limit and therefore, the University in accordance with the provisions of the regulations, was unable to condone the attendance. 4. The learned Single Judge considered the matter, taking into account the provisions of the Calicut University Choice Based Credit Semester System (UG) Regulation 2014, and found that going by the regulations, appellants are not entitled to get condonation as sought for by them. Added to that, it was found that the students have misconducted themselves disabling them to secure any orders exercising the power of discretion under Article 226 of the WA.No.443 OF 2021 6 Constitution of India. It was taking into account the legal imperatives put forth in the counter affidavit filed by the University and deliberating on the same vividly that the reliefs were declined. It is thus challenging the legality and correctness of the judgment, the appeal is preferred. 5. We have heard learned counsel for appellants Sri.C.Rajendran, Sri.P.C.Sasidharan for the Calicut University and perused the pleadings and materials on record. 6. The ground advanced by the appellants is that they could not attend the classes due to the duties assigned to them by the Principal concerning the College Union/University Union activities and also that appellants were under treatment and medicines were administered to them for chronic diseases. It was also pointed out that, if the appellants are not permitted to participate in the semester examinations, after condoning their attendance, it would affect their future and in turn would seriously prejudice them from pursuing further studies. 7. We have appreciated the rival submissions. The subject issue relates to shortage of attendance. The issue is guided by clause 4.10A of Regulation 2014, which specifies, the minimum attendance required and the condonation that can be given by the University. It was taking into account the said provisions of law and other aspects that the learned Single Judge has arrived at the finding that, going by the University regulations appellants are not WA.No.443 OF 2021 7 entitled to get the condonation of attendance and added to that only it was found that the appellants have misconducted themselves on the basis of the stand adopted by the University and the college and therefore, the discretionary remedy cannot be extended to the appellants. After considering the entire pros and cons and the law on the point,we are of the considered opinion that shortage of attendance is beyond the condonable limit of the University and taking into account the same only, it was found that the shortage of attendance cannot be condoned, and therefore, it cannot be said that the learned Single Judge committed any jurisdictional error or other legal infirmities justifying interference in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958. Taking into account the above said aspects and other factual and legal aspects, we have no hesitation to hold that the learned Single Judge was right in dismissing the writ petition. Needless to say, appeal fails, accordingly it is dismissed. ## **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** ## **Sd/-** **SHAJI P.CHALY** **JUDGE** smv WA.No.443 OF 2021 8 WA.No.443 OF 2021 9