Sanjith Muhammed v. State of Kerala and others

W. A. No. 160 of 2022 -1- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 4[TH] DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943** **WA NO. 160 OF 2022** **APPELLANT/S:** **SANJITH MUHAMMED AGED 20 YEARS NS VILLA, MEVARAM, THATTAMALA P.O. MAYYANAD, KOOTTIKADA, KOLLAM, KERALA, PIN - 691020 BY ADVS. SASI M.R. SILPA N.P DHARMYA M.S KAVYA KRISHNAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE VICE – CHANCELLOR KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O. THRISSUR, KERALA, PIN - 680596** - **3 THE DIRECTOR JUBILEE MISSION MEDICAL COLLEGE & RESEARCH INSTITUTE, MOOSPET RD, FATHIMA NAGAR, NELLIKUNNU, THRISSUR, KERALA, PIN - 680005** - **4 THE PRINCIPAL JUBILEE MISSION MEDICAL COLLEGE & RESEARCH INSTITUTE, MOOSPET RD, FATHIMA NAGAR, NELLIKUNNU, THRISSUR, KERALA, PIN - 680005** - **5 THE CONTROLLER OF EXAMINATIONS KERALA UNIVERSITY OF HEALTH SCIENCES MEDICAL COLLEGE P.O. THRISSUR, KERALA, PIN – 680596** W. A. No. 160 of 2022 -2- **6 THE REGISTRAR KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O. THRISSUR, KERALA, PIN - 680596 BY ADVS. SRI. KURIAN GEORGE KANNANTHANAM, SR. SRI. K. P. HARISH, SENIOIR GOVERNMENT PLEADER SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **04.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. No. 160 of 2022 -3- ## **J U D G M E N T** S. Manikumar, C. J. Instant writ appeal is filed by the petitioner in the writ petition challenging the judgment dated 20.01.2022 in W. P. (C) No. 2145 of 2022, by which a learned Single Judge dismissed the writ petition. The subject issue relates to the shortage of attendance suffered by the appellant, thus preventing him to sit for the 1[st] year M.B.B.S supplementary examination. 2. Short facts leading to the filing of the writ petition are as hereunder:- i. Appellant was inducted in the 17[th] MBBS Batch of Jubilee Mission Medical College, Thrissur, affiliated with the Kerala University of Health Sciences, commenced in the year 2019. ii. Appellant’s mother was diagnosed with Cancer (Carcinoma on right breast) on 02.11.2020. Chemotherapy and radiation sessions started on 19.11.2020 at Regional Cancer Centre, Thiruvananthapuram. During all this time, appellant was the only W. A. No. 160 of 2022 -4- bystander with his mother, as his father was working in Dubai, and due to the pandemic, he couldn't return home. Therefore, the appellant could not attend the classes, is the submission. iii. Appellant has further submitted that he was seriously suffering from Mental Depression; and at the same time, SAY Supplementary Examination (Save-A-Year) was conducted, soon after a month of the publication of results of the first year examinations in August, 2021. Due to the misfortune, and ill mental health, he could not clear the same. iv. Consequently he was directed to attend classes along with the 1[st] year students for two months during October and November, however, due to the illness, as said above, appellant could not attend classes and thus was unable to secure sufficient attendance to sit for the examination, as it was also beyond the condonable limit prescribed by the National Medical Commission and the University, respectively. v. Appellant has also submitted that he is is eligible for one time chance of registering and attempting Exhibit P7 examinations, on the clearly proven medical grounds; and further that if the attendance of the regular classes is reckoned along with the attendance secured W. A. No. 160 of 2022 -5- during the two months period as specified above there would be sufficient attendance to sit for the examination. 3. In the above backdrop, before the writ court, appellant has sought for the following reliefs:- “i. To issue a direction to 4[th] respondent to allow the petitioner to register for the First Professional MBBS Degree (Regular & Supplementary) Examinations, 2022 with remittance of superfine for each subject on the last date of 21.01.2022; ii. To issue a direction to 3[rd] respondent and 4[th] respondent to allow the petitioner to appear for the First Professional MBBS Degree (Regular & Supplementary) Examinations, 2022 commencing on 02.02.2022 – 14.02.2022; iii. To issue a direction to the 2[nd] respondent to consider the appeal pending before him in an expeditious manner.” 4. After hearing the learned counsel for the parties, writ court declined to grant the reliefs sought for, and ordered thus:- “2. Learned Counsel for the petitioner submitted that the situation at home had resulted in the petitioner being short of the requisite days of attendance. Adding to the petitioner's woes, he had suffered mild depression also. Being short of attendance, the petitioner had sought condonation of his absence before the W. A. No. 160 of 2022 -6- College. The request was rejected by Ext.P9 and the petitioner has preferred a representation/appeal before the Vice Chancellor. This Court should adopt a sympathetic approach and permit the petitioner to register and partake in the examination. Any amount of sympathy cannot justify the interference in academic matters, particularly in a case where the student had attended only ten out of thirty classes. The registration with respect to examination also do not provide for condonation of absence for such a long period. Hence, I am compelled to dismiss this writ petition. Ordered accordingly.” 5. Being aggrieved, instant writ appeal has been filed on the following grounds:- The learned Single Judge ought to have found that the core of the subject matter of the writ petition is not a matter of sympathy, but to support a brilliant student who has got excellent academic history in 10[th] , 12[th] classes, and secured a better position in NEET examination in his first attempt, immediately after the Higher Secondary examination in 2019. Writ court ought to have noticed that the appellant has got required attendance during his first-year examinations and he had qualified his internal examinations. The appellant had a brilliant and excellent academic history of W. A. No. 160 of 2022 -7- his 10[th] and 12[th] classes and secured all India rank 12913 and State rank 1625 in NEET 2019, immediately after his higher secondary examinations, and he secured admission for MBBS on merit. Respondents 3 and 4 ought to have considered the said fact, while denying him permission to appear for the examination. The learned Single Judge ought to have considered the difficulties faced by the appellant, which prevented him to concentrate on his studies, due to the unexpected cancer treatment of his beloved mother during the period from November 2020 to April 2021, during which period, the first-year examinations were conducted by the University. Writ court ought to have considered that the students who failed in SAY examination were advised to attend the first year classes, along with their junior batch only on 15.10.2021 and by that time, he was undergoing treatment for depression and was advised to take leave for one month from 01.11.2021 by Clinical Psychiatrist. The learned Single Judge ought to have found that the entire portions of the first year MBBS examination could not be covered by the college in a short period from 15.10.2021 to 03.12.2021 and W. A. No. 160 of 2022 -8- therefore, insisting attendance mechanically, without noticing the appellants medical condition, is nothing but a human rights violation. Writ court ought to have considered the fact that during the entire academic period of the second year, the appellant was attending the classes and when he was advised to attend classes along with his juniors (18[th] batch first year MBBS students), the period he had already spent in the second year class ought to have been considered, as attendance, in the repeated first year, and had his entire attendance during that academic year been taken together, he would have secured the eligible percentage of attendance, to enable him to appear for the first year supplementary examinations. The learned Single Judge ought to have considered the fact that reduction of fee ordered by the Admission Supervisory Committee for medical education in Kerala has provoked the authorities of the college and they had taken the destructive decision affecting the future of a bright student, not to permit him to write the examinations, as they became inimical with the appellant, since he had approached the committee. Writ court ought to have considered the fact that it will be fatal W. A. No. 160 of 2022 -9- to the future of the appellant, if he is not permitted to write the supplementary examination, he will ultimately lose two academic years and that may be detrimental to him, especially in his present condition requiring psychological and psychiatric support. The learned Single Judge ought to have considered the fact that the college authorities had taken only 30 days for counting the eligible percentage of attendance for the repeated first year, however should have taken the actual attendance of the appellant in the academic period of the 18[th] batch of first-year MBBS from 20[th] February 2021 to 3[rd] December 2021. 6. On 02.02.2022, we passed the following order:- “Before the writ court, appellant has sought for the following reliefs:- _“(i) To issue a direction to the 4th respondent to allow the petitioner to register for the First Professional MBBS Degree (Regular & Supplementary) Examinations, 2022 with remittance of Superfine for each subject on the last date of 21/01/2022._ _(ii) To issue a direction to the 3rd respondent and 4th respondent to allow the petitioner to register for the First Professional MBBS Degree (Regular & Supplementary) Examinations, 2022 commencing on 02/02/2022 – 14/02/2022._ W. A. No. 160 of 2022 -10- _(iii) To issue a direction to 2[nd] respondent to consider the appeal pending before him in an expeditious manner._ _(iv) Such other reliefs as this Hon'ble Court deems fit to grant in the nature of this case.”_ 2. After hearing the learned counsel for parties, _vide_ judgment dated 21[st] January, 2022, writ court declined to grant the reliefs. Being aggrieved, instant writ appeal is filed. 3. Mr.Sasi.M.R., learned counsel for appellant made submissions on the grounds raised. 4. Mr.P.Sreekumar, learned standing counsel appearing for the Vice-Chancellor, Kerala University of Health Sciences, Thrissur – 2[nd] respondent, submitted that as per the norms of the National Medical Commission (NMC), the minimum attendance required is 80%. However, on account of COVID-19 pandemic, percentage of attendance insisted is 70%. The University is empowered to condone the inadequacy in attendance, if the college sends a proposal. 5. Per contra, learned counsel for appellant, submitted that if the entire attendance is taken into consideration, the appellant would have satisfied the required attendance. He was directed to attend the classes only for 30 days, during which period, he was in a state of depression and been hospitalised in the very same Medical College. That apart, the reason for not attending the classes was that his mother was diagnosed with cancer. According to him, college is prejudiced due to Exhibit P4 order of the Admission Supervisory Committee for Medical Education in Kerala. W. A. No. 160 of 2022 -11- 6. On the aspect of sending any recommendation for relaxation of the attendance, Mr.P.Sreekumar, learned standing counsel for the University, submitted that it is for the college to send the recommendation, provided, the student satisfies the norms. 7. In the light of the above submissions, we permit the appellant to serve a copy of the writ petition to the Principal, Jubilee Mission Medical College & Research Institute, Thrissur – respondent No.3 or the Standing Counsel for the said respondent. Registry is directed to post the matter on 3/2/2022 and issue a copy of this order today itself. Registry is further directed to show the name of Adv.Mr.Tony George Kannanthanam/Kurian George Kananathannam, in the cause list.” 7. Today, when the matter came up for admission, Mr. Kurian George Kannanthanam, learned Senior Counsel appearing for the Jubilee Mission College & Research Institute, Thrissur, the 3[rd] respondent, fairly submitted that though the appellant lacks attendance for theory, practical and internal examinations, considering the last date of the examinations to be 14.02.2022, this Court may direct the appellant to attend the examinations provisionally, without any rights of equity, and that the matter can be heard later. 8. Apart from making submissions on the grounds raised, Mr. W. A. No. 160 of 2022 -12- Sasi M. R. learned counsel for the appellant, further submitted that the appellant had attended all the internal examinations except one, and therefore, sought for a direction to the college authorities, to conduct a special internal examination, and permit the student to register and attend the ongoing regular examinations, taking into account his sad plight. 9. Mr. P. Sreekumar, learned Standing Counsel for the Kerala University of Health Sciences, Thrissur, the 2[nd] respondent, submitted that as per the National Medical Commission (NMC) norms, minimum 75% attendance is required for attending the examinations, and the regulations itself say that, it is for the College or HOD to condone a maximum of 5% attendance only once, in the entire course period. 10. He further submitted that appellant has not appeared for the internal examinations; that minimum 40% marks in the internal examinations is a mandatory eligibility criteria, without which the appellant cannot be permitted to attend the regular examinations. He therefore submitted that the appellant has the disqualification on both the counts, i.e. the shortage of attendance, and the deficiency of the W. A. No. 160 of 2022 -13- internal marks. 11. He also submitted that as per the new norms, a student will get only four chances to clear any paper in the MBBS examination. Now the appellant has already availed two chances. Even taking for granted that he is availing his third chance, he has to clear all the papers. But for any reason, if he could not clear the papers, he will have to attend the ensuing SAY examination, exhausting his final chance. After four attempts, the student will be ejected out of the course as per the new NMC norms, and therefore, it is not advisable for the appellant to attend the examination even provisionally, taking into account the fact that he has not attended the classes, and having regard to the NMC norms relating to attendance and minimum internal marks, and thus the likelihood of not securing a favourable verdict in the appeal. 12. Learned Standing Counsel for the University contended that as per the regulation, appellant will have to undergo the 1[st] year classes again, commencing from February 2022, so that he will get necessary training in all the subjects and can participate in the examination likely to take place during August 2022. Even though the W. A. No. 160 of 2022 -14- situation of the appellant is sympathetic, in order to become a good doctor and serve the society, he will have to undergo necessary training and appear in the examination. 13. We have heard learned counsel for the parties and perused the pleadings and material on record. 14. We are of the considered opinion that when it comes to disposal of the writ appeal, this Court cannot go beyond the norms fixed by the NMC and the regulations of the University, making the situation more vulnerable and bleak. 15. Even though Mr. Sasi M. R., learned counsel for the appellant, contended that Ext. P5 medical certificate issued by the very same medical college certifies the appellant’s medical condition; we are of the view that it is not a valid ground considering the specific and imperative regulation that a student should satisfy 75% attendance for attending the examination, which is, in fact not disputed by the appellant. Though reasons for his absence is genuine, condonation is not permissible, overlooking the regulations. Appellant does not have the required internal marks also. To put it short, no legal grounds were made out by the appellant, before the writ court, to secure the reliefs W. A. No. 160 of 2022 -15- sought for. 16. While expressing sympathy, we are not in a position to interfere with the judgment of the learned Single Judge, as there is no jurisdictional error or other legal infirmities in the impugned judgment, warranting interference in an intra court appeal, exercising power under Section 5 of the Kerala High Court Act, 1958. True that the appellant has a good academic record. We wish the appellant to overcome the stress, attend the classes regularly and successful in all his examinations. The Kerala University of Health Sciences, the 5[th] respondent, shall encourage the appellant in pursuance of his studies and completion of the course. ## Accordingly, writ appeal is dismissed. **Sd/-** ## **S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. A. No. 160 of 2022 -16- ## **APPENDIX OF WA 160/2022** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**Annexure A1**|**TRUE COPY OF THE GRADE SHEET CUM**| ||**CERTIFICATE OF PERFORMANCE OF SECONDARY**| ||**SCHOOL EXAMINATION 2017**| |**Annexure A2**|**TRUE COPY OF THE MARKS STATEMENT OF THE**| ||**CBSE SENIOR SCHOOL CERTIFICATE**| ||**EXAMINATION 2019**| |**Annexure A3**|**TRUE COPY OF THE CANDIDATE DATASHEET OF**| ||**THE PETITIONER WITH ROLL NUMBER 136070**|