SACHIN.K.S, VINIL RAJ, NIKHIL K.S, AKSHAY VISWANATHAN v. MAHATHMA GANDHI UNIVERSITY, KOTTAYAM; REGISTRAR; CONTROLLER OF EXAMINATIONS; PRINCIPAL ST. ALBERTS COLLEGE

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939** **WP(C).No. 8815 of 2018** **----------------------** ## **PETITIONER(S)** **-------------** **1 SACHIN.K.S, AGED 19 YEARS, S/O. SURESH, KANNOTHU PARAMBU HOUSE, AKD NAGAR, MAY 1ST ROAD, THAMMANAM, ERNAKULAM - 682 032.** **2 VINIL RAJ, AGED 19 YEARS, S/O. T.P. VINAYARAJ, THUMBANATHARAYIL HOUSE, HOUSE NO.46, GCDA GANDHI NAGAR, KADAVANTHRA, ERNAKULAM - 682 032.** **3 NIKHIL K.S, AGED 19 YEARS, S/O. K.K. SHANMUKHAN, MUTIKINTHARA VEEDU, SREEKRISHNA TEMPLE ROAD, EDAKOCHI P.O., ERNAKULAM - 682 010.** **4 AKSHAY VISWANATHAN, AGED 19 YEARS, S/O. VISWANATHAN, KOZHUPPATTU HOUSE, EZHIKKARA P.O., NORTH PARAVOOR, ERNAKULAM - 683 513.** **BY ADVS.SRI.C.HARIKUMAR** **SRI.P.S.SIDHARTHAN SRI.RENJITH RAJAPPAN SRI.SAM M.THOMAS** ## **RESPONDENT(S):** **--------------** **1. MAHATHMA GANDHI UNIVERSITY, KOTTAYAM, REPRESENTED BY THE REGISTRAR, PRIYADHARASHANI HILLS, ATHIRAMPUZHA, KOTTAYAM - 686 560.** **2. CONTROLLER OF EXAMINATIONS, MAHATHMA GANDHI UNIVERSITY, PRIYADHARASHANI HILLS, ATHIRAMPUZHA, KOTTAYAM - 686 560.** **3. THE PRINCIPAL ST. ALBERTS COLLEGE, BANERJI ROAD, ERNAKULAM - 682 018.** **R1,R2 BY SRI.ASOK M. CHERIAN, SC, R3 BY ADVS. SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V.** **WP(C).No. 8815 of 2018 (B) -------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1. THE TRUE COPY OF THE ORDER DATED 28.04.2017 OF THE 3RD RESPONDENT EXHIBIT P2. THE TRUE COPY OF THE ORDER DATED 1.08.2017 IN W.P.(C).NO.25402 OF 2017 OF THIS HON'BLE COURT EXHIBIT P3. THE TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION DATED 09.02.2018 ISSUED BY THE 2ND RESPONDENT EXHIBIT P4. THE TRUE COPY OF THE ORDER DATED 06.10.2017 IN W.P.(C)NO.31750 OF 2017 OF THIS HON'BLE COURT** ## **RESPONDENTS EXHIBITS:** **--------------------** **R3(A) PHOTOCOPY OF THE ATTENDANCE DETAILS OF THE 1ST PETITIONER FORWARDED BY THE HEAD OF THE DEPARTMENT OF ECONOMICS DT 16.3.2018. R3(B) PHOTOCOPY OF THE ATTENDANCE DETAILS OF THE 2ND & 3RD PETITIONER ISSUED BY THE HEAD OF THE DEPARTMENT OF MATHEMATICS DT 16.3.2018. R3(C) PHOTOCOPY OF THE ATTENDANCE DETAILS OF THE 4TH PETITIONER FORWARDED BY THE HEAD OF THE DEPARTMENT OF PHYSICS DT 16.3.2018. R3(D) PHOTOCOPY OF THE REGULATIONS FOR UNDER GRADUATE PROGRAMMES UNDER CHOICE BASED COURSED CREDIT SEMESTER SYSTEM AND GRADING 2013. R3(E) PHOTOCOPY OF THE JUDGMENT OF THIS HON'BLE COURT DT 29.5.2017. R3(F) PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DT 20.7.2017. R3(G) PHOTOCOPY OF THE JUDGMENT IN MANU VILSON.V.SREE NARAYANA COLLEGE 1996 (1) KLT 788. R3(H) PHOTOCOPY OF ORDER DT 28.4.2017 ISSUED TO THE PETITIONERS. R3(I) PHOTOCOPY OF THE REGISTERED LETTER ADDRESSED TO THE PETITIONERS 2 TO 4 RETURNED TO THE 3RD RESPONDENT. R3(J) PHOTOCOPY OF THE POSTAL SLIP EVIDENCING THAT ORDER DT 28.4.2017 WAS COMMUNICATED TO THE 1ST PETITIONER. /TRUE COPY/ K.V. P.S.TO JUDGE 20.03.2018** ## **ANIL K.NARENDRAN, J.** **-----------------------------------------------** W.P.(C)No.8815 of 2018 **-----------------------------------------------** Dated this the 19[th] day of March, 2018 ## **J U D G M E N T** The petitioners, who are students in St.Alberts College, Ernakulam, undergoing Degree courses, are before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 and 3 to issue hall-tickets and permit them to attend the Semester examinations notified as per Ext.P3. 2. Going by the averments in the writ petition, the 1[st] petitioner is undergoing B.A. (Economics) Course, the 2[nd] and 3[rd] petitioners are undergoing B.Sc. (Mathematics) Course and the 4[th] petitioner is undergoing B.Sc. (Physics) Course in the 3[rd] respondent College. The petitioners were suspended alleging certain misconducts and the said issue is now pending consideration before this Court in W.P.(C)No.25402/2017 filed by the 4[th] respondent Principal. In that writ petition, while granting stay of the operation of the order dated 20.7.2017 of the M.G.University, this Court has made it clear that if the petitioners are already attending classes, they may be permitted W.P.(C)No.8815 of 2018 :-2-: to attend the classes. The said interim order is still in force. 3. Seeking permission to attend University Examinations, the petitioners have approached this Court in W.P. (C)Nos.24002/2017, 26000/2017 and 31750/2017 and pursuant to the interim orders granted in those writ petitions, they appeared for the respective examinations, subject to the result of those writ petitions. 4. Now the petitioners are before this Court in this writ petition, seeking permission to write the 6[th] Semester Examinations scheduled as per Ext.P3 notification dated 9.2.2018 issued by the 2[nd] respondent Controller of Examinations. In the writ petition, it is alleged that the 3[rd] respondent Principal refused to accept the examination fee and it is in such circumstances that the petitioners have approached this Court in this writ petition, seeking various reliefs. 5. On 15.3.2018, when this writ petition came up for admission, the learned Standing Counsel for M.G.University took notice on admission for respondents 1 and 2. The learned counsel for the 3[rd] respondent Principal also took notice on admission. Learned counsel for the 3[rd] respondent was directed W.P.(C)No.8815 of 2018 :-3-: to get instructions and accordingly the writ petition was ordered to be listed on 16.3.2018 along with connected matters. 6. On 16.3.2018, the learned counsel for the 3[rd] respondent submitted that the last date for submission of application and for remittance of fee for the examinations scheduled as per Ext.P3 was 26.2.2018 and that, the petitioners have not submitted any application. The learned counsel for the 1[st] respondent University submitted that the shortage of attendance upto 10% alone can be condoned as per the Regulations, based on the recommendation made by the Principal. The learned Standing Counsel for the University and also the learned counsel for the 3[rd] respondent were directed to file statements and the writ petition was ordered to be listed today for further consideration, along with connected cases. 7. Today when the case is taken up for further consideration, a detailed counter affidavit has been filed on behalf of the 3[rd] respondent, wherein it has been stated that the 1[st] petitioner has only 19% attendance and the percentage of attendance of other petitioners are 44.6%, 69.8% and 90% respectively. The petitioners 1 to 3 are not eligible to appear for W.P.(C)No.8815 of 2018 :-4-: their 6[th] Semester Examination, since the University Regulations, prescribe minimum 75% attendance. As per the Regulations, shortage of attendance to a maximum of 10 days or 50 hours in a Semester, subject to the maximum of 2 times during the whole period of the programme may be granted by the University on valid grounds. A copy of the Regulation for Under-graduate Programmes under Choice Based Course Credit Semester System and Grading-2013 is placed on record as Ext.R3(d). Paragraph 16.1 of Ext.R3(d) reads thus ; “16.1 Students having a minimum of 75% average attendance for all the courses only can register for the examination. Condonation of shortage of attendance to a maximum of 10 days or 50 hours in a semester subject to a maximum of 2 times during the whole period of the programme may be granted by the University on valid grounds. This condonation shall not be counted for internal assessment. Benefit of attendance may be granted to students attending University/College Union/Co-curricular activities by treating them as present for the days of absence, on production of participation/attendance certificates, within one week, from competent authorities and endorsed by the Head of the Institution. This is limited to a maximum of 10 days per semester and this benefit shall be considered for internal assessment also. Those students who are not eligible even with condonation of shortage of attendance shall repeat the course along with the next batch.” In the counter affidavit, the 3[rd] respondent has also raised various W.P.(C)No.8815 of 2018 :-5-: contentions touching the merits of the issues now pending consideration in W.P.(C)No.25402/2017. 8. Heard the learned counsel for the petitioners, the learned Standing Counsel for respondents 1 and 2 and also the learned counsel for the 3[rd] respondent Principal. 9. The fact that the last date for submission of application and for remittance of fee for the examinations scheduled as per Ext.P3 notification is over by 26.2.2018 is not in dispute. It is also not in dispute that the petitioners have not submitted any application before the last date for submission of application. Paragraph 7 of the writ petition contains only a vague averment that the 3[rd] respondent has refused to accept examination fee amount which was offered by the petitioners for the examination notified as per Ext.P3. 10. The petitioners have approached this Court in this writ petition much after the last date of 26.2.2018 prescribed for submission of application. As per the counter affidavit filed by the 3[rd] respondent, the percentage of attendance of petitioners 1 and 2 is 19% and 44.6% respectively, which are much below the minimum requirement of 75% and also beyond condonable limit W.P.(C)No.8815 of 2018 :-6-: as per the University Regulations. As far as the 3[rd] petitioner is concerned, his percentage of attendance is 69.8%. The 3[rd] petitioner has no case that he has made any application for condonation of shortage of attendance, on valid grounds, supported by the recommendation of the 3[rd] respondent. Though the 4[th] petitioner is having 90% attendance, he has not made any application and remitted fee for the examination scheduled as per Ext.P3 notification before the last date of 26.2.2018. 11. In **Ashok Kumar Thakur v. University of Himachal Pradesh [(1973) 2 SCC 298]** a Three-Judge Bench of the Apex Court held that since the petitioner's deficiency in the matter of attendance exceeded 18 lectures in Economics and 20 lectures in Civics, it was beyond the jurisdiction or competence of the Principal to condone this deficiency, which completely destroys the case of the petitioner. The Apex Court held further that, the court cannot direct or compel an authority to do something which is beyond its legal competence to do. Since the Principal is the only authority who can condone and since it was beyond his competence to condone the shortage in question, the court cannot intervene in favour of the petitioner even if the petitioner W.P.(C)No.8815 of 2018 :-7-: had succeeded in making out a case for condonation. Paragraphs 4 and 5 of the said decision read thus; **“4** . The only question that now remains is whether the petitioner's deficiency in the matter of attendance could be condoned by any authority. The final lecture statement of the Bilaspur and Dharamsala colleges shows that the petitioner was short of 20 lectures in Civics, of 18 lectures in Economics, of 10 lectures in History and of 8 lectures in English. Now the rules as to condoning of deficiency in the matter of attendance of lectures are to be found in Chapter XV of the Punjab University Calendar 1969. Volume III (Rules). The relevant rule is 1 (a) and the material portion of it is in the following terms : "(1) Taking into consideration the results of the House examinations : (a) The Principal of a College affiliated in the Faculties of Arts, Science and Oriental Learning may condone the deficiency in lectures as under : (i) Upto 15 lecturers in each of the subjects;" Since the petitioner's deficiency in the matter of attendance exceeded 18 lectures in Economics and 20 lectures in Civics, it was beyond the jurisdiction or competence of the Principal to condone this deficiency. In our opinion this completely destroys the case of the petitioner. **5** . Considering that this case concerns the career of a young student we tried to look at the matter with all possible sympathy and consideration but we do not see how we can direct or compel an authority to do something which is beyond its legal competence to do. Since the Principal is the only authority who can condone and since it was beyond his competence to condone the shortage in question, we do not see how we can intervene in favour of the petitioner even if W.P.(C)No.8815 of 2018 :-8-: the petitioner had succeeded in making out a case for condonation. In our opinion, the appeal must fail on this short point. Much as we regret the unfortunate fact that the petitioner is going to lose almost two precious years of his academic life we are in law bound to confirm the decision of the High Court, and dismiss the petitioner's appeal. We, therefore, do so. In the circumstances of this case, however, we are making no order as to costs.” 12. In **Santosh Kumar v. Central Warehousing Corporation [(1986) 2 SCC 343]** the Apex Court held that what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Article 226 is not meant to avoid or circumvent the process of the law and the provisions of the Statute. In such circumstances, the petitioners are not entitled for any of the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. ## Sd/- **ANIL K.NARENDRAN JUDGE** ami/20.3.18 //True copy P.A. to Judge//